The Avengers and Illegal Orders

We have one more Avengers post for you.  Be warned: there are spoilers!  Today’s post was inspired by a question from John, who writes:

I was interested in the bit near the end where Fury first disobeys a direct order (to nuke Manhattan) and then shoots down one of his own planes (his team building skills must be great because nobody seems all that upset) to prevent someone else from carrying out orders.

1) under what circumstances is an order illegal?
2) when are you expected to simply refuse to co-operate and when do you take active steps to attack your own side?
3) what are those around him supposed to do about this?

And there is an additional question of whether or not military law (i.e. the UCMJ) applies at all.

Here at Law and the Multiverse we often deal with subjects that we aren’t experts in.  In fact, given that our day jobs involve insurance and intellectual property, that’s usually the case.  So in order to write posts we first do research, usually beginning with higher-level secondary sources (e.g. legal encyclopedias, treatises, law review articles) and then moving on to primary sources (e.g. cases, statutes).  With a military law question like this, however, we were a bit stuck, so we turned to our readers for help, and you came through in spades.  We received offers of assistance from multiple current or former military lawyers, and we’re excited to put them together here.

Before we get to that, though, first a disclaimer:  These lawyers are speaking only for themselves; they are not speaking for the military or the Department of Defense.  This is not legal advice, nor does it constitute the formation of an attorney-client relationship.  With that out of the way, on to the show!

I. The Military Law Approach

Nick, a military lawyer, responds:

“So, obviously UCMJ jurisdiction (as you pointed out) is questionable, but perusing the wikipedia article on SHIELD, it appears it might be military (Nick Fury was once identified as a Colonel, plus they have that flying aircraft carrier, so we’ll go with that).

(1) I pulled the Military Judge’s benchbook, which says: “A command is lawful if reasonably necessary to safeguard and protect the morale, discipline, and usefulness of the members of a command and is directly connected with the maintenance of good order in the service” (which is interestingly enough a question of law, not of fact). It’s an accepted proposition that a order to commit a war crime would be illegal.

Now the question is was Fury ordered to commit a war crime? This isn’t clear. The basic Law of Armed Conflict rules are proportionality, discrimination, and military necessity. Now, the law of armed conflict hasn’t really been tested by alien armies, but I think we can easily dispatch with military necessity and discrimination. But proportionality? Fury gets a little closer here, but I still think he fails. Proportionality looks at whether the military objective is proportional to the civilian damage caused. Here we’re looking at the destruction of New York (by seemingly two nuclear bombs, unless Fury blew up the guy taking their mail to shore), with a huge loss of civilian life. However, even when you balance this against the alien army that is setting out to conquer the earth, you probably get there on that point (and I’m not just saying that because I’m a Red Sox fan).

The other piece of analysis would be whether there is a less destructive way to accomplish the military goals. This is probably where Fury could get to “war crime.” His argument would be that the Avengers were the less destructive way to end the threat, and could probably get there.

(2) What is Fury’s duty? This is interesting. He seems to believe that the order is illegal. There isn’t a lot of case law on this that I’m aware of, but some secondary sources (the Medina court martial, primarily) suggest that a commander who has knowledge of one of his own people committing a war crime has a duty to act to stop it. Current regulations that I pulled today only reference a duty to report war crimes, so I think we would call this a customary duty. Under this idea, and under a ‘defense of others’ type defense, it seems like Fury would both have a duty and a legal defense to shooting down his guys.

(3) What should everyone else do? THIS is an interesting question. To a certain point, I guess it depends on how they see this. If they’re in agreement that he is trying to prevent a war crime, I suppose they don’t have to do anything. If they think he is committing murder and/or violating a lawful order, they obviously have a duty to report the crimes, and they most likely would have a duty to try to prevent him from killing people and stopping the mission, though my knowledge for this portion is admittedly a bit thin.”

Jason, Former Captain, U.S. Army JAG Corps, responded:

“Assuming that the S.H.I.E.L.D. members are subject to the UCMJ, the bottom line analysis revolves around [UCMJ] Article 92 – “Failure to obey a lawful order or regulation.”  The central question there revolves around the “lawful” nature of the order itself.  Here is an interesting short essay regarding Article 92 that I found online, while not credited to any one source, it appears to have been written from a military perspective.  There is a difference between a simple illegal order and a patently illegal order. An illegal order can be in violation of general legality, such as orders to commit hazing on troops, orders to abuse trainees, an order to go beyond the speed limit in a military vehicle. A patently or manifestly illegal order applies generally, but not exclusively to the protection of persons (civilians, prisoners, medical personnel and clergy), medical facilities, places of prayer, monuments, etc. The US distinguishes a patently illegal order as one which orders someone to commit a crime.

Some of the most famous cases dealing with someone who should have disobeyed an order because it was illegal are that of Lieutenant William Calley at the My Lai massacre in Vietnam (dramatically interpreted by the movie Platoon) and the case of United States v. Keenan, where the accused (Keenan) was found guilty of murder after he obeyed in order to shoot and kill an elderly Vietnamese citizen. The Court of Military Appeals held that “the justification for acts done pursuant to orders does not exist if the order was of such a nature that a man of ordinary sense and understanding would know it to be illegal.” (Interestingly, the soldier who gave Keenan the order, Corporal Luczko, was acquitted by reason of insanity).

However, soldiers have to be careful what orders they choose to disobey, lest they suffer the fate of Specialist Michael New – In 1995, Spec-4 Michael New was serving in Schweinfurt, Germany. When assigned as part of a multi-national peacekeeping mission about to be deployed to Macedonia, Specialist New and the other soldiers in his unit were ordered to wear United Nations (U.N.) Helmets and arm bands. New refused the order, contending that it was an illegal order. New’s superiors disagreed. Ultimately, so did the court-martial panel. New was found guilty of disobeying a lawful order and sentenced to a bad conduct discharge. The Army Court of Criminal Appeals upheld the conviction, as did the Court of Appeals of the Armed Forces.

My gut reaction in this situation would be that Nick Fury acted appropriately in disobeying the Council’s directive as his actions were taken to protect the millions of innocent civilians.  I hope this helps!”

So both of our guest authors concluded that, assuming the UCMJ applies, Fury was probably in the right when he acted to prevent the nuclear strike on Manhattan, despite the order being given from higher up.

II. Civilian Law

If the UCMJ didn’t apply, then the situation would probably fall under regular civilian law, and Fury could invoke a defense of others argument.  You might wonder how Fury could justify that, since in theory the Council was likewise acting in defense of others by ordering the strike in the first place.  The problem is the risk to innocent bystanders.  A person acting in self-defense (or defense of others) who accidentally injures or kills a third party is ordinarily not liable.  However, if the person acts recklessly then he or she would be liable.

Of course, the situation may be such that A ought not to shoot at B in self-defense, etc., because of the presence of bystanders like C whom A might hit instead. If there is a high degree of risk to people like C involved in A’s shooting at B, A’s killing of C will amount to manslaughter, Henwood v. People, 54 Colo. 188, 129 P. 1010 (1913); Annot., 18 A.L.R. 917, 928 (1922); if a substantial certainty, to murder.

Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 3.12, at 402 n. 53 (1986); see also Reyes v. State, 783 So.2d 1129 (Fla. App. 2001).  An intentional killing of an innocent third person in order to save oneself (or, presumably, another) may negate the defense completely. State v. Soine, 348 N.W.2d 824 (Minn. App. 1984).

The Council could argue necessity, but necessity is a “lesser of two evils” defense, and letting the Avengers handle the situation was even less of an evil than the nuclear strike.  Although the Avengers were not certain to stop the Chitauri, neither was the nuclear strike (and indeed it would not have worked, as the bulk of the Chitauri forces had not even arrived yet).

Thus, under civilian law, there’s a strong argument that Fury was acting to defend innocent bystanders from the unjustified actions of the Council.

III. Conclusion

No matter how you slice it, Fury’s actions were probably justified.  Thanks again to Nick and Jason for their help with this post!

40 Responses to The Avengers and Illegal Orders

  1. Highly approve of both this post and this movie. Nice work.

    (Although, still upset with Marvel for using the Ultimate version of Fury instead of standard 616, but that is neither here nor there.)

    • If you’re upset, imagine hoe David Hasselhoff feels!

      • We may assume that SHIELD still has the necessary tools to ensure that Fury can disguise himself as he sees fit. Whether that leaves opportunities open to Mr. Hasselhoff is up to Disney/Marvel. :-)

  2. This was an interesting post with contributions from multiple experts. Thank you for providing it.

    It does seem that all the consensus that Fury was justified is centered around the idea that the Avengers would succeed, and that Fury was justified in being highly confident in that belief, though.

    Nick said, “His argument would be that the Avengers were the less destructive way to end the threat, and could probably get there.” And this of course was proven true. But it easily might not have been true, and it is clear that at that time the Council did not believe it to be true, and that belief was probably quite reasonable given an alien threat of unknown power and a team that had practically disintegrated under its own weight more than once up to that point. The counerargument is probably that at the time the orders were given Nick’s belief that the Avenger’s would succeed is unreasonable, while the Council had a reasonable belief that a nuclear strike would either stop or dramatically slow down an alien invasion.

    Jason said, “My gut reaction in this situation would be that Nick Fury acted appropriately in disobeying the Council’s directive as his actions were taken to protect the millions of innocent civilians.” And he is quite right! But the counterargument is that the Council was taking steps that it at least reasonably believed were acting to protect the billions of innocent civilians that would be threatened in a full scale invasion of the earth by aliens.

    Of course we all know that in the end Fury was right and the council was wrong, but that is with the benefit of hindsight (or at least out-of-universe knowledge of how a Marvel movie was going to end.) Looked at from the vantage point of people in the situation, it would be easy to see Fury’s belief in the ability of the Avenger’s, who were hastily assembled, had spent much of the preceding time fighting each other, and several of them had histories of instability as being quite unreasonable. On the other hand, it could be seen as quite reasonable to believe that nuclear weapon, which encompass both the portal itself and the portal generator in its blast radius would put an end to the threat.

    • You wrote [Of course we all know that in the end Fury was right and the council was wrong, but that is with the benefit of hindsight]

      Even in-universe, though, the people deciding whether to charge Fury with a crime and the people whom will judge him if he is charged get to make their decisions with the benefit of hindsight. If both positions are reasonable, Fury is the one who gets to argue that they now know he was right and it would have been an absolute tragedy to let the bombing go forward.

  3. Given that Ultimate Fury was originally based on Jackson in the first place, it should be no surprise. The actor approved the use of his image as long as he got to play Fury in any movie roles.

  4. I find it hard to imagine circumstances where a U.S. soldier would find it illegal to be ordered to wear U.N. gear unless they had nothing to do with the U.N. I’m finding it harder to imagine a soldier making an issue ofit.

    • Well, according to a quick Google search, it appears that his complaint wasn’t wearing the UN gear per se; it was that he believed that US forces could only be sent into a combat zone under command of the UN with express authorization from congress. Or, at least, this is what he said at his trial.

  5. James Pollock

    The fact that Nick Fury is “Colonel” Fury provides no insight as to whether or not SHIELD is military. Fury’s entitled to “colonel” because that’s the U.S. Army rank he retired at. Before he was Nick Fury, Agent of S.H.I.E.L.D., he was Sergeant Fury, and served in WWII. After the war, he was commissioned and rose through the officer corps fairly quickly. (He has been historically coy when asked about his apparent superhuman longevity.) When Hill replaced him, she was “commandant” Hill… which is not a military rank. As originally conceived, SHIELD is something of an internationalized amalgam of the FBI and CIA.

    Here’s a scenario: SHIELD is an international force, dominated by the United States. Accordingly, SHIELD has different rules when operating within the U.S. and when it is outside the U.S. (say, raiding Germany in pursuit of Loki.) When the strike against Manhattan was ordered, the helicarrier was outside U.S. airspace, and thus under international control. However, once the plane carrying the nuke entered U.S. airspace, it came under sole U.S. jurisdiction, and thus American forces were justified in attempting to shoot it down.
    Perhaps our military legal experts can chime in to tell us… does the Navy operate with different rules in U.S. waters, in international waters, and in the waters of other countries?

    • As in the comics continuity, your “international force, dominated by the United States” definition is probably the way to go. That Fury’s bosses in the movie are referred to as the “World Security Council” is a legal sop to the real United Nations’ concerns over their depiction in pop culture fiction by Disney/Marvel.

    • Commandant is a military rank , in the French Army, French Airforce and Irish Army, sort of a major according to Wikipedia,…

      • James Pollock

        Well, the word comes to us from the French, and basically means “commander”. As far as I know, however, the U.S. military (perhaps I should have specified that?) has only a couple of people who are given a title of “commandant”. The highest-ranking officer in the USMC is the Commandant, and the heads of the four service academies (USMA, USNA, USAFA, and USCGA).

        Maria Hill is not in the French Army, French Air Force, or Irish Army. (Of course, the actress who played her is best known as Canadian pop star Robin Sparkles…)

      • The title “Commandant” is used as a job title for a number of officers in the Army, generally heading schools. The head of the Engineer, Military Police, and Chemical schools at Fort Leonard Wood, MO all use the title, and I believe (though don’t have personal knowledge) that this is typical for all branch schools in the Army. Fort Benning’s website (www.benning.army.mil) says that the school heads for the Armor and Infantry under the CG, MCoE, use the title “Commandant,” but the offices are currently vacant.

        I guess this is a long way to say that the title “Commandant” isn’t rare in the US Army, and is a job title, rather than a rank. I’ve seen Commandants anywhere from colonel to major general, depending on the specifics of how a school is set up and the current force structure winds at HQDA.

      • James Pollock

        The question isn’t whether the term “Commandant” is used in the military where appropriate, the question is whether “Commandant” implies a military organization. It doesn’t… the term is used in police organizations, as well (which, in its original formulation, is what S.H.I.E.L.D. was.) “Colonel” Fury isn’t a “Colonel” of S.H.I.E.L.D., S.H.I.E.L.D. has “agents”. “Colonel” Fury is a “Colonel” the old-fashioned way… in the army. It is a testament to his character that he was able to rise to non-com status, and then rise through the officer corps… few commissioned officers have experience as non-coms, as it takes time-in-grade to earn the promotions as well as hard work, suitable temperament, intelligence, and capability.

  6. “When a general is in the field, there are some orders he doesn’t accept from the civilian ruler.” –Sun Tzu

    General Sun’s argument was that the general in the field has a much better handle on how the battle is going. This would have been especially true in his time: if the Emperor himself had sent orders to attack another nation and Sun Tzu’s men were neither ready nor equipped to go into battle then the general would likely have sent the messenger back to the Emperor to tell him that the situation was a no-go.

    What would Sun Tzu have said about the idea of using a nuclear weapon to take out an entire city of Chinese civilians because the Mongols had made it through the Great Wall? I think he would have dismissed it as a bad idea.

    • Mr. Tzu (if he actually existed) lived in a time when you had to use tactics concerning chariots. Like Machiavelli, some of what he says is useful but other details should be examined with caution.

      • Tzu is actually a title meaning “Master”. Confucius was similarly actually Kongfu Tzu or “Master Kongfu”. You just called Sun Tzu “Mister Master”. :)

      • I actually was aware and hoped that someone would get the joke.

        More to the point on Tzu, this is one of the oldest debates on military/civilian relations. Generally in the West it’s accepted that military leaders have some degree of autonomy during wartime (complicated greatly by political guerrilla warfare) while staying heavily out of civilian politics, but here it seems to be suggested that Fury’s superiors are also military as well.

      • A SHIELD movie would have to address the issue of what the World Security Council is. In my mind it is Disney CEO Robert Iger, Time-Warner CEO Jeffrey Bewkes, Newscorp CEO Rupurt Murdock and Sony CEO Kazuo Hirai nand maybe a few others. They are kept in shadows during the movie so as to not reveal the fact that in the Marvel Universe the major corporations are literally running everything. :)

    • I have amazing respect for “The Art of War”, but it was written at a point in time when communications mostly involved physical messangers and an order from the ruler to a general could easily be several days old. It is quite possible that the legendary Sun Tzu would have given very different, or at least slightly more nuanced, advice if he had been in an Era where the General could respond to the ruler with a “Are you sure? You might want to rethink that because of X, Y, Z” that very minute.

      As for what Sun Tzu would do if he had the choice of wiping out one of his own cities to stop an invasion by an otherwise superior force: He probably would have wiped out his own city as long as it had a reasoanble chance of success. Remember, this same man advocated stealing from the civilians to feed your army (he spoke of that in reference to enemy civilians, but this was at a time the general could probably have levied a tax on the local civilian populus under his own authority, so the result would be the same under a different name). He also advocated burning bridges behind you to ensure that your men would be motivated to fight to the death. He was ruthless. As long as he actually thought it would stop the invasion, he probably would have happily destroyed one of his own cities.

  7. James,

    I’ll defer to your knowledge of Nick Fury and SHIELD, though I would note that while “Commandant” is not a military rank, it is sometimes a military position.

    As for how the Navy operates, there are real differences, both in tactics and in navigation. Ships enjoy free navigation in their own waters and in international waters, but have very limited rights to enter into other nation’s waters (while transiting, with their permission, to rescue someone, etc). They’re also limited in what they can do (launching aircraft, etc.).

    An even bigger difference is in tactics. In US waters, the Navy would use Rules for the Use of Force, which are much more restrictive than the Rules of Engagement (which are used outside the US).

  8. John McSorley

    Thanks for the reply to my question.

    I must confess i originally thought i was going to find out if fury was shot or merely incarcerated for life. The thought this may be actually ok is more than a little surprising.

    How much of this depends on the avengers actually winning? Does it matter that arguably they only won due to the nuke being ‘provided’ by the military for iron man to deploy in the baddies home base? possibly hte same question – does it matter that it NEEDED the nuke deployed (though not where and how first intended) in order to win.

    Like all godd answers it leads to more questions

  9. Why is it you guys always go to war crimes? There are other reasons for disobeying orders as well.

    I disobeyed direct (and verging on illegal) orders on several occasions (without penalty), for a variety of reasons. (This example goes to John’s question #2, which you didn’t answer at all.) Once, was when I was ordered to remotely energize a piece of equipment that I knew someone was working inside and doing so could have risked death or grave harm. Had we been in combat, I’d have obeyed the order because that risk would have been balanced by the risk to the ship because the gear was powered down. Also (and on point to the unaddressed question #3) my team supported me in this on the same basis, and that’s the expected behavior. I.E. what you see in the movies about relieving the superior and then ordering his subordinate to do what he wouldn’t is generally crap. (In an ideal world, the subordinate is going to reach the same conclusion and refuse the order on the same grounds – because that’s how we’re trained.)

    Another time, I disobeyed a local procedure (violated a written order) that would have resulted in the ship’s missile battery going offline. Why? Because the (otherwise legal) local procedure resulted (unintentionally) in violating higher level directives regarding the operation of the missile battery. My action was required in order to bring attention to this problem. (My immediate superiors having been unable to get the procedure modified by less dramatic means.)

    Fury could also argue that he was maintaining the safety and security of his command – that the possible death or injury to the Avenegers outweighed the chances of stopping the invasion. The flipside is also often encountered – artillery will sometimes be ordered to fire dangerously close to their mates in certain circumstances because the risks thus created are less than the risks arising from the failure to do so.

    • (This example goes to John’s question #2, which you didn’t answer at all.)

      That was addressed. Look at “(2) What is Fury’s duty?”

      and on point to the unaddressed question #3

      Question 3 was addressed as well. “(3) What should everyone else do? ” There might not be a conclusive answer there, but it was addressed.

    • Considering that it involved attempting to use nuclear weapons while the civilian population was still in the city and deliberately shooting down a plane piloted by a S.H.I.E.L.D. pilot I think they might choose to start at war crimes.

    • James Pollock

      People in the armed forces are frequently given contradictory orders. The first example that came to mind for me was a basic training exercise. The person on door guard duty is given orders to open the door only to people recognized as part of the training unit, or people who display a distinctive pass. The training cadre will sometimes attempt to gain entry without a pass to test the door guard, and occasionally a visiting officer will attempt to enter without following the correct procedure (this is rare, as the interior of a basic-training barracks is not that interesting, on purpose.)
      Orders contrary to technical orders are not exactly unknown (as noted above.)

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  11. What I didn’t get is why they didn’t just fire a nuke through the wormhole to begin with. Ok, fine, a few buildings would be toast, but it’s ridiculously less destructive than detonating it in Earth’s own atmosphere.

  12. I did find it interesting that for most of the movie, SHIELD agents were shooting other SHIELD agents or people dressed as SHIELD agents.

    It looks like SHIELD comes with their very own self-contained OPFOR.
    Must be convenient not to need an enemy to fight wars.

  13. If Nick and the Avengers win , then the President will give them a full pardon or issue back dated orders . Then he will bitch slap the Council for trying to kill 8 million voters.

  14. Sean Robert Meaney

    I would have gone with ‘any Act causing Government, Law, Constitution, Sovereign to be held in hatred and contempt is a Seditious Act (including by ambiguity of the law – Acts of government, Law, Constitution, Sovereign causing government, Law, Constitution, Sovereign to be held in hatred and or contempt thus validating a ‘consensus of the whole populace’ legal structure – which overturns the authority of all laws, governments, constitutions, and sovereigns not having consensus of the whole populace. Basically Nick Fury can do what he likes as long as it saves lives. But sacrificing another life to save his own (or a few sacrificed to save the many) would be an act of Sedition in those terms.

  15. A few things you’re failing to address.

    1) Who are the council? Are they civilian, military, a cabal? Why do they have the authority to give an order in the first place? We assume they do simply because it’s implied. For all we know they have no legal authority, and this is somewhat implied that their jurisdiction is multinational. In this regard they have no legal authority to drop nukes on anything without a joint resoloution of the UN Security council which they decidedly do not have since they’re a shadow group.

    2) Nick Fury can equally assume that the council could be compromised based on the fact that they are willing to drop nukes without proper authority (the President of the United States should in theory supercede the authority of the ‘Council’ in this matter… we never saw the President give any such order). In which case, he can assume that any orders they give have no legal binding given that SHIELD is a branch off of the Dept. of Homeland Security as established by previous films. The Council may be their leadership, and they may have the fire power, they may even have legal precedent to engage an enemy, but without a declaration of war – the use of nuclear weapons on American soil is decidedly illegal without the declaration of war, martial laws, and of course the neither of those occurred either. In point of fact Fury was not only obligated to destroy those planes — but all other agents were obligated to do so as this was a nonsanctioned act of aggression against civilian populace.

    Just some thoughts to consider.

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  18. I apologize if this has already been asked, but has any legal consideration been given to the fact that the Avengers could not have completed their objective, which made blowing up New York unnecessary, without the bombs Fury’s superiors attempted to use to blow up New York? Someone above mentioned that Fury would have the benefit of arguing with hindsight (saying that it would have been a tragedy to blow up NYC knowing what we do now) but we aren’t certain they would have stopped the baddies without the bomb.

    The fact is, the Avengers were probably gonna lose that fight. Nothing like the brunt of the alien force had come through the portal and they were barely holding their own. Not to mention their was a trickster god on the loose; a trickster god that probably would have had time to recuperate from the Hulk if the Avengers had to spend the rest of the week fighting aliens. Granted, Black Widow probably have been able to close the portal without the bomb, but that would have left a huge alien force in the middle of New York with an exhausted Avenger’s team and no backup no close backup… unless you count the cops and the national guard, but they seemed kind of useless.

    So given the result of the battle, the order to destroy NYC resulted in a better outcome. How does this outcome factor into the legal consideration?

    Also, I’m pretty our bomb blew up a moon and junk out there. Are we sure it would have just blown up NYC?

    • The nuke helped them destroy the alien armada, but the battle was won by closing the wormhole. Had the nuke not been fired then the wormhole would still have been closed, so in fact they could and indeed DID complete their objective without it. At worst they would have had to take out the remaining Chitauri (assuming that closing the wormhole would not have been sufficient to kill them, since they seem dependant on some kind of hive network to live), which meant that the nuke might have saved SOME lives, but still at the cost of endangering millions.

  19. I would like to add the fact that nuking Manhattan could not have worked. It becomes established that the wormhole device was invincibly self shielded from inside, by unlimited power source, making the potential nuking New York extremely unlikely to succeed. If I’m not mistaken, this fact is known before the nuke order is given, and the Avengers were effectively foiling the invasion even at that point. Fury had every reason to disagree with nuking New York.

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  22. Dear Sirs:
    I was wondering if you could take a look at the movie “Black Moon Rising,”
    with Tommy Lee Jones. In a nutshell, would stealing evidence needed to make a case for tax evasion be legal or hold up in a court of law?
    Thank You
    erikbeale@yahoo.com

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