Permissible Looting?

September 1, 2005

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?

Black versus White in the press

September 1, 2005

This is interesting! Take a look at how these two seemingly IDENTICAL situations are described VERY differently by the press:

Perhaps the journalist knew something we didn’t- perhaps not. It’s still interesting.