Ready for the storm.
Photographer: Michele Eve Sandberg/AFP/Getty Images
My recent column about the legal status of people who took food from abandoned supermarkets after Hurricane Harvey hit Texas generated considerable and passionate disagreement. Now that Hurricane Irma is devastating large parts of the Caribbean and churning toward Florida, the same issues are likely to arise. So it’s worth taking some time to separate the legal questions that were the subject of my earlier column from the ethical questions I ignored.
The Harvey column began as a contribution to the online debate over whether hurricane victims looking for food should be called “looters.” I pointed out that under the “necessity” defense in criminal law, a person who needs food to sustain his family’s life is not guilty of a crime if he (nonviolently) takes food from an unattended store. This point is not new, and should not be controversial. I also noted that the Model Penal Code includes as an example of this defense a hiker who shelters in an empty cabin during a snowstorm and eats the food. This example, I argued, is essentially what some storm victims in cities do in an emergency.
The response was thunderous. Readers emailed to say that they were “disheartened” by my column, and that “theft is theft.” I was told that I had no respect for property rights, that my suggestion would lead to anarchy, and that I was in favor of looting. It was incredible, I was told, that I was allowed to teach law.
Any decent person, multiple readers wrote, would at least leave money to pay for the food. But most of these responses go to ethics, not legality. The distinction matters, because a thing can be wrong without being illegal.