Looting or Scavenging? Taking Food or Water and the Necessity Defense

        A few days ago, The Daily Mail reported about a man, who claimed to be former law enforcement, that stopped people from looting a grocery store in the wake of Hurricane Harvey. Obviously, we don't know what the erstwhile looters were going to take--food, water, or other merchandise--but it is clear that they weren't going to be making off with big-screen TVs as we seen in other videos. But, considering that it was a convenience store or grocer, it raises the question of the morality or legality of taking food or water from a store in the aftermath of a disaster. Stephen L. Carter, a Yale law professor, argues at Bloomberg that obtaining food or water from an abandoned store in such situations is not "looting" because it is defensible under the legal theory of necessity. He argues: 

       Let’s start by considering our own instincts. If I were trapped and my family was starving, I would grab the food; I suspect most readers would too. Already our instincts tell us, then, that the moral situation in which we find ourselves is different when a disaster has struck. I believe, very deeply, in the importance of strong property rules. In an emergency, however, we should interpret the rules differently.

       The problem is familiar to law students. It arises in courses on torts, contracts and (of course) criminal law. A well-known example in the Model Penal Code posits a hiker who, trapped by a blizzard, breaks into a cabin and eats the food to survive. The hiker has taken both food and shelter without the permission of the owner. By choosing to violate a property rule rather than starve to death or die of exposure, the hiker has selected the lesser of two evils. This is one form of the defense known as “necessity,” and is generally considered to mean that there is no crime.

        But let’s be clear about why this is so. In the Model Penal Code example, there’s a life-threatening emergency but there’s also something else. When the hiker stumbles upon the cabin, it’s empty. Thus we might say formally that high transaction costs make it impossible for the hiker to negotiate with the owner for the food and shelter that he needs. The same then would be true of the people left hungry in Harvey’s flooding. Key to our conclusion that they’re not looters is that the stores from which they are taking food are unattended -- empty.

        So now imagine a different case: When the hungry people arrive at the flooded supermarket looking for food, the owner is standing in their path. He is an ornery sort. He listens to their pleas but says no. They demand food anyway. He brandishes a shotgun and says that he will defend his property. If they overpower him and take the food anyway, is the case the same?

       Plainly it isn’t. For one thing, they have added assault to the crimes with which they might be charged. Pilfering food when you’re hungry is one thing; injuring someone to get it is another. In other words, the defense of necessity weakens as the crime becomes more serious. 

        But if this is so, then suppose a scenario where the owner isn’t present (meaning there can be no negotiations), but he later discovers the looted food store, and finds out who took his goods. No crime has been committed. Does that mean that no tort has been committed? If we suppose that there would have been negotiations had the owner been present, then a court could indeed require that those who took the food must pay a reasonable price later on. If we don’t believe this, then it’s not clear why the hungry shouldn’t be permitted to fight their way past the ornery owner and take the food over his objections.

          (And before you answer that the hungry should indeed be able to fight their way past the store owner, imagine that refugees from the storm show up at your door and demand to share your house, under the rule of necessity. If you say no, should it be legal for them to fight their way into your house and take it over? Shelter is a necessity too.)

         Another way to put the point is that although the law allows property rules to be violated in cases of emergency, rules protecting the individual are treated differently. Moreover, although charity is a moral obligation it is rarely a legal obligation. We should love our neighbors. We should share with them to the extent that we are able. But with rare exception the law will not force us to share, even when sharing is the right thing to do.

        Although many jurisdictions have not adopted the Model Penal Code, most would recognize a defense of necessity to a criminal charge. (Clearly, irregardless of necessity, the person taking the food will be liable to compensate the store owner for the value of the food taken). However, at least in Idaho,* one of the elements of a necessity defense is a specific threat of immediate harm. I can see thirst as creating a threat of immediate harm if one did not otherwise have access to clean water justifying taking of bottled water or other drinks from the store, but, absent a medical condition to the contrary, most people can easily survive several days without food. So it seems to me that it would be more difficult to justify taking food items generally. 

        One of the other elements of necessity--the harm caused was not disproportionate to the harm avoided--suggests that necessity would be better applied to perishable foods than non-perishable foods because taking food that would otherwise have spoiled is certainly less of a harm than taking food that would otherwise be merchantable after the disaster was abated. Anyway, chime-in down in the comments with your thoughts.

 * Note: In Idaho, the elements of a necessity defense are: (1) a specific threat of immediate harm; (2) the circumstances which necessitate the illegal act must not have been brought about by the defendant; (3) the same objective could not have been accomplished by a less offensive alternative available to the actor; and (4) the harm caused was not disproportionate to the harm avoided. State v. Tadlock, 136 Idaho 413, 34 P.3d 1096 (Ct. App. 2001).