The Volokh Conspiracy -

[David Kopel, September 1, 2005 at 1:51pm] Trackbacks

Armed Response to Looters:

I will be on NRAnews today, at 5:20 p.m. Eastern Time, to discuss citizen response to the New Orleans looters, along with some thoughts about the surge in gun ownership that followed 9/11. You can listen/watch on the web, or on Sirius satellite channel 141. My view on the looting is that it is reasonable, under the legal excuse of Necessity, for a person to take food from a store, if no other food is available in the disaster zone. Such a person would be obligated to remember the value of the food, and to make payment for what he took as soon as practically possible. However, the looting of concern in New Orleans isn't Jean Valjean taking bread for his children; the looting involves attacks on hospitals to steal their narcotics, and attacks on stores or homes which have nothing to do with acquiring necessities for short-term survival. Given the absence of a sufficient police presence in order to stop the looters, I strongly agree with Glenn Reynolds that such looters should be shot on sight by armed citizens. A citizen's arrest and detention isn't possible as a practical matter. Shooting the New Orleans looters is, under present circumstances, an appropriate response to the collapse of civic order, and a first step towards the restoration of that order.

Related Posts (on one page):

Private Use of Deadly Force to Defend Property and Restore Order:
Comment on "Armed Response to Looters":
Armed Response to Looters:

[Orin Kerr, September 1, 2005 at 2:26pm] Trackbacks

Comment on "Armed Response to Looters": In response to David Kopel's post below, my own view is that encouraging vigilante groups in New Orleans to "shoot on sight" whoever they believe is a looter without a valid necessity defense is tremendously dangerous. Such an approach would only help undermine the social order by turning New Orleans from a looting zone into a shooting zone.

Among the problems is that looters can get guns, too, and presumably will try to shoot on sight the "armed citizens" that are trying to shoot them on sight. For that matter, armed looters will presumably say that they are "armed citizens" looking for looters, and will just shoot "citizens" and claim that be believed that they were looters. Who will be able to tell, given that the other side will by then be dead? The looter/armed citizen line is nice and clear in theory, but things get fuzzy and hard to reconstruct in practice. I would rather not encourage the latter to kill the former as a way of restoring social order.

I strongly believe in self-defense, and this is particularly true in the horror of the developing situation like that in New Orleans. But encouraging armed vigilante groups to "shoot on sight" when they see what they think is "looting of concern" (as opposed to necessity-based looting, which is apparently quite okay and even laudable) in a city that is being evacuated seems to me, well, a really really bad idea. Others may disagree, of course, so I have enabled comments. Please note: I realize that these are particularly anxious times, but I am going to be quite relentless in deleting comments that are not civil, respectful, and on point.

Related Posts (on one page):

Private Use of Deadly Force to Defend Property and Restore Order:
Comment on "Armed Response to Looters":
Armed Response to Looters:

Comments

[Eugene Volokh, September 2, 2005 at 11:46am] Trackbacks

Private Use of Deadly Force to Defend Property and Restore Order:

There are certainly many important moral and pragmatic arguments about the propriety of citizens' use of deadly force to defend property or to restore order, especially when the normal go-through-the-proper-channels means of protecting property or deterring crime are absent. Texas law (see secs. 9.41-9.43), for instance gives citizens a fairly broad right to use deadly force to defend both their property and, in many instances, others' property, even under normal conditions.

Based on my quick glance at the statutes, though, I doubt that even the Texas defense would extend simply to shooting looters, chiefly because it requires an attempt to protect or recover (recover for the benefit of the owner, I assume) specific property. The shooting of looters of others' property isn't really aimed at or likely to recover that property for the owner's benefit. Even if the looter can't get away with the TV set, it's unlikely that the owner of the TV set will get it back that way; and shooting for the purpose of generally deterring others' misconduct (as opposed to, for instance, shooting for the purpose of specifically deterring people who are right near the target from looting that particular place) probably isn't covered under Texas law. Moreover, there is still a moral question as to the propriety of such shooting, and the practical matters that Orin raises (and I lean towards sharing Orin's concerns).

But in any event, that's Texas law, not Louisiana law; and it might be worth remembering that, under Louisiana law — which generally (with some exceptions not applicable here) doesn't allow the use of deadly force to defend property — the shooting of looters by private citizens is a crime: the crime of murder. Some might argue that it shouldn't be a crime, either because the Texas rule (or an even broader version of it) is generally right, or because when civil authority collapses citizens have to be able to protect their property (if they're shooting people who are looting their own property) or try to restore order more broadly. And that's all well and good for blogs. But if you are ever put in this position yourself (and I hope none of us ever will be), you might want to keep in mind that, in most states and probably even in Texas, the current criminal law is very much not on your side.

Comments: Please be calm and civil, and if you want to make arguments about the current state of the law, please point to specific legal authorities. In particular, if you want to argue about Texas law, please make sure you have carefully read the statutes I cited.