Permissible Looting?

I have been appalled at the rampant looting reports from the areas affected by hurricane Katrina. I wonder how people can be so predatory and exploitive.

However, I wonder whether some looting in a disaster is completely legitimate- that is looting for food. If your family is stranded without food and water, and there is a grocery store nearby with those supplies, would the emergency situation render it permissible to take enough for you and your family to survive?

Peggy Noonan sees this distinction between people in need, and looters, who she thinks “should be shot”:

People with no food and water who are walking into supermarkets and taking food and water off the shelves are not criminal, they are sane. They are not looters, they are people who are attempting to survive; they are taking the basics of survival off shelves in stores where there isn’t even anyone at the cash register.

Looters are not looking to survive; they’re looking to take advantage of the weakness of others. They are predators. They’re taking not what they need but what they want. They are breaking into stores in New Orleans and elsewhere and stealing flat screen TVs and jewelry, guns and CD players. They are breaking into homes and taking what those who have fled trustingly left behind. In Biloxi, Miss., looters went from shop to shop. “People are just casually walking in and filling up garbage bags and walking off like they’re Santa Claus,” the owner of a Super 8 Motel told the London Times. On CNN, producer Kim Siegel reported in the middle of the afternoon from Canal Street in New Orleans that looters were taking “everything they can.”

John Hawkins disagrees:

What it all comes down to is that the whole idea that there’s “good looting” and “bad looting” makes no practical sense. Do people think that if someone kicks in the door of a WalMart and grabs water and canned food, they’re a good looter, but if they grab a $10 watch in on their way out they suddenly turn into bad guys? Should the cops be standing around, allowing people to loot food and water, but shoot anyone who comes out with a TV? If two people want to steal the same jug of water, is it first come first served, or is OK to steal things from the other people who are stealing things? What if a Salvation Army van rolls down the street at that very moment with donated food and water? Are the people who continue stealing food and water from Walmart suddenly bad guys again? How about if it’s coming in two hours, but you’re hungry now?

John’s argument makes a lot of sense: elsewhere he argues that while Noonan condones the looting of necessities at some far-off store, she may not be so eager to condone it on her own property. Is that hypocritical?

Our common law actually provides that necessity is a defense of justification for all crimes except homicides. Some of you lawyers out there might recall the seminal case of Regina v. Dudley & Stephens (14 Q.B. 273 (1884)), where the English courts refused to extend the doctrine of necessity to two sailors who, stranded at sea for ten days with nothing more than two tins of turnips and whatever they could catch, killed the cabin boy who was with them and fed off of his flesh for four days until they were rescued. They would have died had they not killed the cabin boy. In his decision to convict the two sailors of murder for their desperate but heinous act, Lord Coleridge opined:

It must not be supposed that in refusing to admit temptation to be an excuse for crime it is forgotten how terrible the crime was; how awful the suffering; how hard in such trials to keep the judgment straight and the conduct pure. We are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we could not ourselves satisfy.

Although this decision was about the applicability of the necessity defense in a homicide case, the words of Lord Coleridge may well be applied to many crimes: “we are often compelled to set up standards we cannot reach ourselves, and to lay down rules we could not ourselves satisfy.”

Lord Bacon disagreed:

The law chargeth no man with default where the act is compulsory and not voluntary, and where there is not a consent and election: and therefore, if either there be an impossibility for a man to do otherwise, or so great a perturbation of the judgment and reason as in presumption of law man’s nature cannot overcome, such necessity carrieth a priviledge in itself.

It seems to me that the gospel teaches that there is nothing that “man’s nature cannot overcome,” therefore it seems that the teaching of Lord Coleridge is closer to the truth than that of Lord Bacon.

If that is the case, should these people who are taking necessary food and supplies from grocery stores to help themselves and their families survive in this desperate circumstance be held to Lord Colridge’s standard of “lay[ing] down rules we ourselves could not satisfy”? My heart desperately wants to say “no”.

Whatever the normative debate, I think that American law says “yes” to the people taking necessary foodstuffs from the shelves of stores to survive. American courts today require defendants to meet four requirements before being permitted to assert a necessity defense: (1) the harm to be avoided is greater than the harm caused by the defendant’s illegal activities; (2) there is no legal alternative to breaking the law; (3) the harm to be prevented is imminent; and (4) it is reasonable to believe that the defendant’s actions will be effective in abating the harm. The necessity question is always a matter of fact for the jury.

In the case of the hurricane victims stealing necessary food, here is a short analysis: As to (1), the harm to be avoided is a person and his/her family starving to death. Death is a greater harm than loss of property. Therefore, the harm to be avoided is greater than the harm caused by the larceny of necessary food; (2) if these people really have no food, and had not the means necessary to evacuate, then there probably aren’t any legal alternatives to breaking the law. These people seem pretty desperate; (3) the harm to be prevented, i.e., death by starvation is at this point getting pretty imminent. Of course, it begs the question of what imminent means…; (4) in this case, if the harm to be abated is imminent death by starvation, then it is certainly reasonable to believe that stealing the necessary food will be effective in abating the harm. Therefore, those victims who are stealing food from grocery stores should be allowed to assert a defense of necessity to the jury.

Thus, on a normative level I am afraid I probably agree with Lord Coleridge, which seems heartless in this situation. But there are (sometimes unattainable in this life) ideals which should govern behavior, even in desperate circumstances. Of course, I am still not certain where a line can be drawn- for example, speeding to get your sick wife to the hospital should certainly not be immoral in the same sense as eating your cabin boy to survive might be.

At any rate, how do you feel about the looting in New Orleans, and do you think any of it is excusable?

10 Responses to Permissible Looting?

  1. Anonymous says:

    If food is not being delivered, and your children are without food, loot away baby. Whether that’s the case, though, I have no idea. 

    Posted by Ronan

  2. Anonymous says:

    Jordan: one important factor I think your analysis forgets…one is still required to pay for damages caused despite a necessity defense. i may need to crash land my airplane, but if I do it in your house; i still have to pay for the damages, even if I dont’ get convicted for murder if I kill someone in the process.  

    Posted by lyle

  3. Anonymous says:

    If you want to be an honest looter of food, and the only reason you meet the definition of “looter” is because there are no employees at the store ready, willing and able to take your money in exchange for the food, tally up the inventory when you get home, figure out the worth of the stuff and then just remember to pay back the store for what you took when things get back to normal. 

    Posted by Mark N.

  4. Anonymous says:

    for me it is more about one making sense and the other not making sense at all.

    i can understand why people would take food and water, those are basic needs. i can understand that people would be worried and frightened and react in ways they may not normally react.

    the people taking tv’s and such doesn’t make sense though, they don’t even have a place to put them. their homes are gone, what are they thinking? clothes almost make sense because you do need them, but it’s really sad in both cases.

    the part i don’t get even a little bit is why are people shooting at the rescue workers and the helicopters? what is going on in their minds that would cause them to shoot at the very people who are there to help them? 

    Posted by Aimee Roo

  5. Anonymous says:

    Hey, the post got deleted while I was posting a comment, so I’m posting away (just read the post above at volokh.com — while birthing …)

    None of us learned anything about the modern world in graduate school, professional school, or our various Ph.D. programs 

    I had wondered what happened in your program ;)

    Wish you luck. If you end up at HCA Plano or at Dallas Methodist, I know some good people. 

    Posted by Stephen M (Ethesis)

  6. Anonymous says:

    I find Noonan’s view much more appealing and reasonable than John Hawkins. To John Hawkins I say, yes, if you decide to steal  a watch in addition to acquiring, based on dire necessity, the food and water necessary for you and your family to survive, then you have become a “bad” looter, a predator, and exploiter, whereas as taking the food and water was completely justifiable. To John Hawkins hypo about the Red Cross coming with food and water, which he meant to sound absurd, I would answer that, if you still loot the store when there is a Red Cross on the street or will be within a short period of time, then you are a “bad” looter and you are running afoul of the Anglo-American rule of law that allows this country to function and be successful in myriad fields of human activity. 

    Posted by john fowles

  7. Anonymous says:

    It is a sad fact that society will reach its lowest common denomenator when put into a stressful situation. There would have been a small portion of the people that would have looted no matter what, however, what the people needed wash leadership. When any given society is without it, a leader will rise. The Governor of Louisiana should be flogged. She should be asked to stay the night where she has asked the poorest of her state to stay in dire conditions.

    When I saw her on the news Tuesday and then again Wednesday, I could tell she was in shock and this crisis was way over her capabilities to handle and lead. She should have called for the feds way sooner than she did.

    While I do not agree morally with looting goods from anyone, someone had to lead in the face of none at all. 

    Posted by chronicler

  8. Anonymous says:

    Hey, I found your blog and figured since it was local, you might be
    interested in This Divided State. It was the documentary we shot in
    Orem/Provo when UVSC brought Michael Moore to speak. It’s gotten an
    amazing amount of national attention, and I thought you might like a
    heads up.

    http://www.thisdividedstate.com ;

    Posted by Bryan

  9. Bryan says:

    Hey, I found your blog and figured since it was local, you might be
    interested in This Divided State. It was the documentary we shot in
    Orem/Provo when UVSC brought Michael Moore to speak. It’s gotten an
    amazing amount of national attention, and I thought you might like a
    heads up.

    http://www.thisdividedstate.com

  10. Anonymous says:

    Restitution, as Lyle pointed out above, is the key.

    So why aren’t our laws or rather justice system set up to enforce restitution (in all acts of crime)? In America we claim to have “justtice for all” yet hardly ever does the victim get restored. How sad! 

    Posted by Daylan Darby

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