Lawdopers: zombies and the law 2.0

Cafe Society
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Well, it’s that time of year again - the time when, instead of studying for law school exams as I should be doing, I turn to the Dope for procrastination. Last semester, I asked my learned brothers and sisters, “Can Blackacre Vest in a Zombie?” I now come to you with new questions, an unholy commingling of Law and Zombie-ism that Man was not meant to contemplate.

1.) Zombies and the First Amendment: Young Herbert West, Esq., brings suit challenging the constitutionality of an Arkham City ordinance banning “the distribution, in any public place, of any circular, leaflet, notice or other printed matter urging citizens to defy Arkham’s Splatter-on-Sight Law.” The Splatter-on-Sight Law requires all citizens, if appropriately armed, to attempt to kill zombies on sight. Assume Splatter-on-Sight is a constitutionally valid measure. What result in young West’s suit? What arguments will he present? What are the city’s strongest arguments?

2.) Zombies in Delaware: The Umbrella Corporation, incorporated in Delaware, is the target of a hostile takeover bid by Weyland-Yutani (also a Delaware corporation). As a defensive tactic, the Umbrella Corporation chooses to divest itself of its most valuable asset, a massive zombie horde, which it releases into Raccoon City as part of the new sanitation program. Is this a permissible defensive tactic? If the facts given are insufficient to reach a conclusion, what additional facts do you require?

3.) Zombies Behind Bars: Jean Valjean is arrested for running the nation’s largest methamphetamine manufacturing and smuggling ring in order to feed his starving sister and her family. After being properly Mirandized, and declining to speak to police, he is placed in a jail cell along with John DiGhoul, a purse-snatcher who recently became zombified following a dispute with the Raccoon City Sanitation Department. Mr. DiGhoul is in restraints and cannot reach Valjean’s sweet, sweet brains, so long as the latter remains on his side of the cell. After ten minutes, Valjean yells that he wishes to confess, and writes out and signs a detailed confession following his release from his cell. Is the confession admissible?

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One bump, perhaps, to save this thread from the undeath of the second page.

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Awesome. Please note, IANAL, but I am a big ol’ Zombie fan, so I have to do this.

I imagine, knowing what little I do know, that Mr. West can make a strong 1st amendment case for this, as long as he restricts his posting of these bills to legal locations. Being political in nature (sort of) he should have a strong case. As for the city, were I in charge, I would declare this the equivalent of the ‘yelling fire in a theatre’ defense, they are asking people to take part in a demonstration that will result in danger to the public.

Is it not illegal for a corporation to divest itself of value during a takeover bid? I know that’s the case during a divorce for us plebian folk. In addition, depending on the legal standing of our zombie hordes, is Umbrella Corp. illegally dumping? Just because they have value, that doesn’t make it legal to dump.

I supposet that depends on your definition of “torture”. I would try to make a case to have the confession thrown out on the grounds of duress.

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I passed the Tennessee bar exam this summer, and have been busily drinking all this knowledge out of my brain ever since. I’ll take a swing at it, though…

I don’t see that the zombie issue affects this case at all. This would receive straight-ahead Strict Scrutiny: Urging people to violate the Splatter-on-Sight law would be protected speech unless barring West from saying such things were a necessary means to achieve a compelling state interest.

Are those criteria met here? Preventing zombification of the citizenry sounds like a darn-tootin’ compelling interest, but I think the state fails the necessary-means test in this case. If stopping some dude from putting up a flyer is the state’s only plan to save us from the undead hordes, we’re fucked six ways to Sunday.

West could also, of course, put up flyers that simply say, “I’m going to defy the Splatter-on-Sight ordinance.” That way he wouldn’t be “urging citizens” to do anything, as specified in the statute.

How much is a zombie horde worth? How far along is the takeover bid? Was this a Board decision or a stockholder decision? If it’s a Board decision, then divesting the company of a major asset–not even selling it, but effectively just throwing it away–looks like a breach of the fiduciary duties of care and of loyalty.

I don’t recall the specifics right now, but I believe there are also civil and even criminal penalties for disposing of assets to foil a takeover this way. If the contract of sale has already been finalized, then there’s definitely some tort action going on.

Finally: Releasing a zombie horde into the city, even under the guise of “helping out with the new sanitation program,” is probably going to get you in some environmental trouble, at the very least, plus negligent/intentional tort suits by anyone injured by the zombies (or, more likely, their survivors).

Hey, I wonder if the Superfund would cover the costs of fighting off a zombie invasion?

Finally, some Due Process:

Not if I’m his lawyer, it’s not. Confessions must be voluntary to be admissible; any use of physical force or intimidation invalidates the confession immediately. I fail to see how a confession induced by being locked in a cell with a shrieking zombie would satisfy the Due Process clause.

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Not a lawyer, but I did get a 155 on the LSAT.

That makes me qualified to recommend, if you haven’t already seen it, the movie Fido.

I will retreat and read the fascinating answers of others.

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Nice one, Hung Mung! A more serious movie about the topic was the French movie Les Revenants (English title: They Came Back), which dealt with the dead coming back to life in a French city. But they weren’t stumbling, encephalophagic horrors; they came back as themselves, as though they’d just been away and not dead. They were going, “I want my job back!” and “Why’s my wife married to another dude?” and “I could really use some health care.” It was really well done in the way that it treated this supernatural occurrence with total realism: How does the government react to this? How does the remarried spouse deal with it? How does a guy who accidentally killed someone in a car wreck, and is wracked with guilt over it, deal with the victim’s returning to life? (Parts of it were creepy as hell, too.)

I think I mentioned it in the last zombie-law thread, but it’s worth another plug. Really good movie.

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A question: What year does this take place in—in modern times (implying a movie-continuity Dr. West), or in the early 20th century of the literary West? If it’s the later, then the situation might be covered under the Espionage Act of 1917. This, of course, also depends on the legal status of zombies—about which two major possibilities come to mind: one, is that they are legally still recognized as merely human beings (albeit hostile and/or diseased ones), in which case they might be considered “enemies” (also depending on whether or not the U.S. was still at war (presumibly WWI) at the time, or if an undeclared “war on the undead” qualifies). The other possibility is that the zombies are not legally recognized as human beings (living or undead), and still have the legal status as corpses. In which case, advocating defying a government ordnance might still be forbidden under the Sedition Act of 1918.

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First, West must show standing: that he is actually injured by the ordinance (e.g., currently being prosecuted for violating the law), and that he is not in fact a zombie. In my court, zombies have no standing. Suck it, zombies.

Assuming standing has been met, the revenant…er, relevant Supreme Court decision is Brandenburg v. Ohio, 395 U.S. 444 (1969), which first stated the incitement test, as follows:

“[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

Brandenburg at 448.

The city will argue that West’s activity was directed towards incitement of lawless activity and likely to cause such activity. West will argue that the “imminence” factor has not been met, and that his printed material was thus merely inflammatory and thus protected speech. The outcome will likely turn on the precise wording of Wests’s printed material, the manner of its distribution (say, in an area currently under zombie attack, to people actively engaging in zombie shooting), and whether the statute is overbroad, banning protected imflammatory pro-zombie speech as well as unproteced incitement to pro-zombie activity.

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In some of these cases the issue of whether zombies are “people” for the purposes of the law – particularly constitutional law may of course be an issue. It would seem clear that a comatose human being, unable to move by itself and kept alive by a life-support system, is a person. Why then is an undead human being, able to move about and terrorise others, not a person, and hence protected by the Constitution and able to have standing like normal people? Blood-sucking doesn’t count: if it did, half the legal profession would be un-people. I would argue that as sentient human beings, zombies are people, and if born within the US before becoming undead are still citizens.

Hence, in the first case, the ordinance requiring zombies to be splattered on sight deprives zombies of their constitutional rights, and urging citizens to defy the ordinance is not only lawful but completely proper.

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Okay, but we’re deviating from the hypo, which assumes the ordinance to be a constituionally valid measure. The law generally distinguishes between mere unconsciousness and a brain state that meets a definition of legal death, be it entire brain death, lack of neocortical function, or the ever popular persistant vegetative state. Most zombie material represent zombies to be individuals who have suffered recent medical death, but whose lower brain processes have been stimutated by radiation or infection to cause the body, though dead, to react to stimuli, such as the presence of nearby brains. To my thinking, this no more makes them alive than the electricity that made Galvani’s frog’s legs twitch. At any rate, zombie infestation is usually potrayed as a cataclysmic event, and recognizing the rights of zombies to unlife, liberty, and the pursuit of brains would be tantaount to the dooming of civilization. “The Constitution is not a suicide pact.” Terminiello v. Chicago, 337 U.S. 1 (1949) (Jackson, dissenting).

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I can’t help but wonder if the “Castle Doctrine”/“Stand your Ground” law would apply in this situation—a zombie, after all, if it is considered human, is then merely a person suffering from a (contagious?) medical condition that invariably leads them to attempt to attack, kill, and/or consume any non-zombie person they encounter, and leaves them nigh-invulnerable to anything but a fatal injury.

One then has to wonder if the mere presence of zombies in public places constitutes illegally entering a premises uninvited. I should note that, assuming they were actually legally declared dead previous to becoming zombies, a bystander might then reasonably believe that the zombie was in fact violating local ordnances concerning improper disposal of human bodies by not remaining lawfully in their graves.

The situation would of course be complicated if some legal do-gooder managed to have the declaration of death overturned.