The Volokh Conspiracy - <a href="http://www.khou.com/topstories/stories/khou050923_mh_looters.87dd0ff0.html">Looting in Houston</a>:

The AP reports on some incidents, and quotes Houston Police Capt. Dwayne Ready, who makes a good point — in a way obvious, but perhaps not entirely clear to every one:

“I think the key element in looting is the fact that those who would not otherwise engage themselves in criminal activity (join in) and believe they will be able to hide in the crowd,” Ready said. “It’s the difference between an unlawful assembly and a riot. Essentially (looting) is theft but I think its when the crowd believes they can hide against the anonymity of a large crowd engaged in the same kind of conduct.”

Incidentally, whatever the practical or moral merits of shooting looters, I think it's surely morally laudable to warn looters that Texas law generally authorizes people to kill thieves to protect or recover their own property (setting aside the situation where the target took the property in order to survive),

§ 9.41. (a) A person . . . is justified in using force against another . . . to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other's trespass on the [person's] land or unlawful interference with the [person's] property.

(b) A person unlawfully dispossessed . . . by another is justified in using force against the other . . . to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession . . . .

§ 9.42. [Deadly force may be used in the above situations] . . . to the degree [the actor] reasonably believes the deadly force is immediately necessary:

(A) to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or

(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and

(3) [the actor] reasonably believes that:

(A) the land or property cannot be protected or recovered by any other means; or

(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

People can also use deadly force to protect others' property under similar circumstances, if they reasonably believe the target committed or is committing theft or attempted theft (§ 9.43).

Again, I might advise Texans not to take advantage of their legal rights under these sections in some situations. But I would surely advise all Texans to remember that Texas property owners have those rights, and many have the reputation of being willing to use them.

Thanks to Shawn Wesson for the pointer.

	[Eugene Volokh, September 23, 2005 at 5:49pm] Trackbacks Looting in Houston: The AP reports on some incidents, and quotes Houston Police Capt. Dwayne Ready, who makes a good point — in a way obvious, but perhaps not entirely clear to every one: “I think the key element in looting is the fact that those who would not otherwise engage themselves in criminal activity (join in) and believe they will be able to hide in the crowd,” Ready said. “It’s the difference between an unlawful assembly and a riot. Essentially (looting) is theft but I think its when the crowd believes they can hide against the anonymity of a large crowd engaged in the same kind of conduct.” Incidentally, whatever the practical or moral merits of shooting looters, I think it's surely morally laudable to warn looters that Texas law generally authorizes people to kill thieves to protect or recover their own property (setting aside the situation where the target took the property in order to survive), § 9.41. (a) A person . . . is justified in using force against another . . . to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other's trespass on the [person's] land or unlawful interference with the [person's] property. (b) A person unlawfully dispossessed . . . by another is justified in using force against the other . . . to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession . . . . § 9.42. [Deadly force may be used in the above situations] . . . to the degree [the actor] reasonably believes the deadly force is immediately necessary: (A) to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or (B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and (3) [the actor] reasonably believes that: (A) the land or property cannot be protected or recovered by any other means; or (B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury. People can also use deadly force to protect others' property under similar circumstances, if they reasonably believe the target committed or is committing theft or attempted theft (§ 9.43). Again, I might advise Texans not to take advantage of their legal rights under these sections in some situations. But I would surely advise all Texans to remember that Texas property owners have those rights, and many have the reputation of being willing to use them. Thanks to Shawn Wesson for the pointer.