Another Harvey Ethics Quiz On Looting….

The comments on the Ethics Quiz on shooting looters was edifying. Now let’s examine the question of “legal looting,” according to a Yale Law School professor.

In a post for Bloomberg, Stephen L. Carter argues that “Peacefully taking what you need from a supermarket isn’t the same as looting.” he writes in part,

Should we conclude that people taking food from an empty store during an emergency are not committing a crime? That’s exactly what we should conclude — they are not lawbreakers — but it’s important that we understand exactly why.

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…. 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.

(You need to read the whole post to fairly consider Carter’s argument.)

Your Ethics Alarms Hurricane Harvey Ethics Quiz of the Day is…

Is looting an abandoned supermarket for food still a crime?

My answer? “Oh, be serious, professor. Of course it is.”

Even as he carefully tries to narrow the scope of his position to minimize its obvious slippery slope perils, Carter gets in trouble. Here, for example:

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.


You teach law students with logic like that?

1.The claim that unattended property that obviously belongs to another can be taken at will without committing a crime is so unethical that it hurts my teeth. This isn’t abandoned property. Nobody could walk in and legally claim that he now owned the store. Similarly, it doesn’t matter ethically or legally whether the store is guarded by the owner or not, unless he left a sign that read, “Help Yourselves!” The food is still his. He paid for it. He is counting on the proceeds to pay his bills and feed his family.

2. Carter thinks assault is what makes his scenario theft? How about the fact that the owner is standing there saying, “It’s my food, and you can’t have it,” and it IS his food. He is present, and has denied permission to take his food. Carter just finished saying that the fact that store was empty was “key.” Now he abandons that position to argue that the “needy” storm victims can still legally take his property as long as they don’t  assault him!

The reality is that once you take the position that anyone can break the law as long as they feel they “need” to, you are making law enforcement impossible and undermining the principles behind law-abiding civilization.

Carter’s article is pure abstract navel-gazing that intentionally ignores practical complexities—in other words, the kind of things they argue about in law school. If your child is dying of hunger and you take food to feed him or her, you still don’t magically own the food, and you still committed a crime.  When an ethical and law abiding person is forced to engage in such conduct, he must also resolve to compensate the owner later. A compassionate prosecutor, jury or judge may well waive punishment, but a crime was still committed.

In a footnote, Carter leaps down his own slope, writing,

“Should he also suffer no penalty should he take food from the store when there is no emergency? After all, he is every bit as hungry. In a much-discussed 2016 decision involving a homeless man who stole food from a supermarket, Italy’s highest court said yes — he committed no crime.”

That decision was bats, and in Italy: why is Carter citing it? For a distraction, it seems. He knows his argument leads directly to that question, he knows that the answer, “Sure, hungry people should be able to steal food at will” marks him as far left, anarchist nut, so he points and says, “Hey! ITALY says it’s not a crime! See?”

It’s an “everybody does it” dodge, the rarely used “Italy does it” variation.

Let me clarify for the Professor:

  • If the looter is desperate and takes food from an abandoned supermarket, he is making a defensible utilitarian decision, committing a wrong in order to safe a live. That doesn’t mean what he stole is his, or that there has been no crime. . He is still guilty. The circumstances mitigate the appropriate punishment.

He is still looting. The looting is just less wrong than it usually is.

  • That means, however, that the individual is only taking what he (or she) needs to survive. How much food does a looter have to take before he has exceeded Carter’s desperation standard? If he goes back ten times and carried out armfuls of steaks, salmon, lobster bisque and caviar, is that still acting on need and necessity? The professor doesn’t even raise this issue.

What does Italy say, Professor?

  • Who is sufficiently needy to ignore the law? Who decides, and how? How hungry is hungry enough to wipe out the laws against theft, or to trigger the Stephen L. Carter “It’s OK to take the food even as the owner is standing there telling you to stop, as long as you don’t beat him” Rule? Is mildly hungry enough? Is it legal to steal potato chips if a looter has a bad case of the munchies?

Again, it’s easy making pronouncements like Carter’s if you ignore the details…where the devil resides.

Anyone who takes someone else’s property under such conditions must do so a) recognizing that he is committing a crime b) realizing that he has harmed another, and c) accepting the commitment to make restitution to the owner if possible. Prof. Carter’s reasoning inevitably creates a rationalization for guiltless and shameless theft.

Pointer: Prof. Glenn Reynolds



19 thoughts on “Another Harvey Ethics Quiz On Looting….

  1. “Is looting an abandoned supermarket for food still a crime?”


    Caveat; there are worse case scenarios that could change things, if my family and I were truly in desperate survival need in a disaster situation and if I was absolutely forced to set my ethics aside for the survival of my family, I’d write a list of the items and the cost and I would return to repay the owner at a later date because leaving cash during such lawlessness would be completely ridiculous. I would do everything within my power to make things right for the store owner.

    There are conditions where literal survival takes precedence; however, it’s an act that must be rectified at a later date, A.S.A.P., absolutely no exceptions! In today’s world, I think I’d wear a sign stating who I am and that I fully intend to repay the business owner for the life sustaining supplies I removed. I’d remove nothing that was not required for sustaining life, beer is not life sustaining, liquor is not life sustaining, foods that require cooking if I have no way to cook them are not life sustaining; light weight things that fall into the following categories, carbs, sugars, water, sealed packages of frozen veggies (to eat first), canned meals, absolutely nothing that requires refrigeration, etc. This is NOT the country we currently live in! In the United States today there is really no justifiable reason to loot a grocery store for even life sustaining food, there are places to get the help that’s needed ESPECIALLY in a disaster such as a hurricane.

    Personally, I would have left the affected area prior to the onset of the disaster, if possible, to keep my family and I safe. Luckily, I have family and good friends all over the United States and I can reasonably afford to travel to any of their locations at a moment’s notice.

  2. There are multiple levels of utilitarianism to consider. In a situation like Harvey, there will be week long power outages, and people stranded for extended periods before the authorities can rescue them (we will ignore the decisions that lead them to need rescuing). In Katrina, power outages extended for months. Parts of that city have still reverted to farm land.

    After a week without power, especially with flooding, anything left in that store will be going into a dumpster: Lobster, steak, caviar, all of it. It is still looting, and the people stranded may or may not have only themselves to blame for being stranded and without supplies. But it is also unreasonable to expect them not to loot the store to survive. This is more applicable in sudden disasters such as tornadoes, as the aisle were likely picked clean of food in the days leading up to Harvey. A grocery store only has room for about twos days worth of food for a community; they are constantly restocked and disasters will cut off the supplies lines.

    We need the rule of law, especially times of true emergency. But there also has to be a recognition that it is not acceptable for whatever food remains to rot in a store, while a devastated city outside starves. Weighing the situation, there simply must be an orderly distribution to avoid panicked rushing of the aisles, that gives cover to unwarranted looting. Great disasters are tests of character, pushing communities to the extremes with multiple conflicting priorities.

  3. “Character is not made in a crisis it is only exhibited,” said Robert Freeman. The act of looting is a crime under any situation. Returning to the scene of the crime when times return to normal in order to reimburse the owner for that which one took is the deciding factor in my book as to whether or not the looter is a criminal or a man of true character. I doubt we will see too many men of character in the wake of Harvey. However, if we see but only one, he should be celebrated with every honor known to man. A rare find indeed.

  4. Yes, still a crime. The emergency and scope of the theft should scale the amount of mercy shown by the courts. If the guy is there with his gun, try to negotiate with him for some basics, he’s scared too. Either way, get basics that require little to no cooking: Canned fruit/veggies if you have a manual can opener, Peanut butter (sent abroad for relief so just as good here). forget booze and look for meal replacement stuff. I’d be most worried about potable water. I’m glad I don’t live on a flood plane or hurricane prone area, but with my health issues, I’d probably be on a casualty list,

  5. There is a dividing line between looting and salvage.

    For example, a store where floodwaters are rising, and perishables will perish shortly unless taken. Leaving payment, if only a chit or check that will likely be lost in the flood is necessary. If the chit is lost, it has to be replaced.

    There are maritime laws on salvage that may be applicable as principles. If the establishment is truly abandoned to the floods, a salvor may make a reasonable claim for salvage when returning the goods, and if the court determined amount is not paid, may be awarded them free and clear by the salvage court.

    Then there’s the principle of “necessity knows no law”. On one hand, the owner of the goods has every right to see his property perish rather than let others have it, regardless of price they are willing to pay. On the other, someone in dire need has every right to take valueless commodities, such as goods about to be destroyed,providing they pay a reasonable price for them under the circumstances. What the reasonable price is is something for a salvage court to decide under the given circumstances.

    It is not unusual in auto accidents for a vehicle to be entirely “written off” even if there may be some residual value in the parts. The assessment involved may be more financially costly than any residual value. The same principles apply.

    Consider a group of survivors in an evacuation centres such as a school, without food or water. The taking of contents of soft drink machines in order to keep the survivors alive, even without the owners permission, may reasonably be seen as not just blameless, but praiseworthy.

    If the taking was done under some kind of authority, then such otherwise unlawful taking would be excused under sovereign immunity or emergency regulation. If self organised by an amateur, then they may be subject to criminal prosecution for saving lives that way. The only defences under those circumstances would be to hope prosecutors would exercise discretion, or to rely on jury nullification.

  6. Jack wrote: “The reality is that once you take the position that anyone can break the law as long as they feel they “need” to, you are making law enforcement impossible and undermining the principles behind law-abiding civilization.

    “Carter’s article is pure abstract navel-gazing that intentionally ignores practical complexities—in other words, the kind of things they argue about in law school. If your child is dying of hunger and you take food to feed him or her, you still don’t magically own the food, and you still committed a crime. When an ethical and law abiding person is forced to engage in such conduct, he must also resolve to compensate the owner later. A compassionate prosecutor, jury or judge may well waive punishment, but a crime was still committed.”

    If one is forced to loot for genuine reasons of hunger, or a substantial survival need, the only way to mitigate the illegal act is by expressing the willingness to take responsibility for repayment at a later date. Perhaps sort of like publishing a legal announcement in the newspaper. If the electronics are still operative (smartphone) one could email the police or fire-department admitting what one is doing and why and of course giving one’s name.

    I sort of like the complication of a mob of genuinely starving people, people who are in grave danger, being stopped from accessing necessaries by an armed owner. Suppose the mob chose to overpower him and still take the necessaries. Later, when the situation was judged, I think a case could be made that the man who tried to stop the mob was in the wrong. A (genuine) crisis demands that people abandon mormalcy, but still the concepts that underlie ‘civilization’ are nonetheless present. It would be therefor wrong and contrary to sound principles to deny necessaries to genuinely needy people even though, in normal times, blocking them would be supported by the laws.

    A crisis (disaster) is a disruption that overturns the normal order by definition. The measure of ‘truly civilized people’ is how they choose to operate their ethics in situations of chaos and stress. The better people are those who demonstrate that they understand higher principles. The man who blocks starving people from getting to his food-stuffs in that precise situation must be seen as having the lower moral, ethical and legal ground.

  7. This is a great example of why I read Ethics Alarm. On the surface the question is benign and simply straight forward. In the professors column and in Jacks comments I know what I think on first impression. Right and wrong. The six comments I have read though add to things I was thinking and things that hadn’t occurred to me, making it not so straight forward; Salvage, Maritime law, Chits for what is taken. A whole lot of this begs the question on the moral and ethical responsibility of the shop owner. Is it ethical not to give the food away if everything is going to spoil? Will he give back monies he receives if the whole store is a write off? Should the doors be opened to allow for salvage?

  8. I’m pretty darned sure that given the extensive social safety net in this country and the vast emergency response capability provided by the government, NGOs and private citizens, no one, I repeat no one, ever needs to steal anything to survive in this country. People don’t even need to panhandle, for God’s sake. Anyone who loots in contemporary America, even after a hurricane or flood or other natural disaster, is simply a thief.

    And given our country’s problem with obesity, who among us couldn’t afford to fast for a day or two?

    This, “if I were trapped in a snowstorm, would I eat my fellow travelers” stuff is hypothetical silliness.

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