Is That Legal?

I agree. How astonishing that people still believe in self defense and the right to be armed amid lawlessness.

I mean, who do they think they are? They should just let looters take from hospitals, or grab as many HDTVs as possible.

Because anarchy and lawlessness is better than letting anyone be armed or try to stop this insanity.

As someone on another post noted: Mayor Daley in the 60s ordered some looters stopped and the looting...stopped.

As I noted: NO riot or looting spree to this extent has EVER stopped outside of some people getting shot. Frankly, when the balance is skewed to lawlessness to this extent, a firm and undeniable reaffirmation that certain conduct will NOT be tolerated is required.

It is this sense of looting free for all which gives cover and tacit permission to other things going on, like snipers shooting at Charity Hospital (CNN) or military choppers trying to get people out of the Superdome (various news services).

What I see is the "civil mask" of the left telling these people to drop dead, don't try to defend yourselves or your city looters are AOK and not to be stopped, detered or in any way thwarted.

I'm with the victims of the criminal looters Professor and want to see them armed to defend themselves. I can clearly see what side you are on, however.

A. Nonymous,
Please do me the favor of identifying the place where I have denied or argued against the right of self-defense. (Hint: you won't find it.)

By arguing the victims should not be armed as you have above, you have arged against the right of self-defense.

By arguing that efforts to stop looting (and yes, at this point the only way to stop it is by firing) are wrong, you are against the defense of self by extention. How? Because when lawlessness against PROPERTY is allowed, lawlessness against PERSONS is right behind. Witness the reports of mass rapes in the Superdome running on CNN. Witness the reports of snipers firing on Charity Hospital on CNN.

Witness that your only proposed solution is....nothing except to rail against those trying to restore order and stop the lawlessness.

Name the mass looting in modern times that was stopped on its own accord and WITHOUT some shooting of the looters. (Hint: you won't find it.)

Sit comfortably and tut tut people who argue that the best way to defend yourself is to arm yourself. Give a wrinkled brow to those who argue that the only response to mass lawlessness and "domestic violence" (in the Art IV, Sect 4 US Constitution sense) isto shoot those committing said violence.

Give the person with the axe hacking into a door of a hospital to loot a hug Professor. That'll stop him.

Give the person driving a forklift into a store front to loot a stern lecture. That's the ticket.

Give the thief a wag of your finger Professor. Because that will be all it takes to stop the looting. After all, that's what has stopped looting before, right Professor?

LOOK UP HERE...

CONCENTRATE ON THE LOOTING...

that way you'll forget all about helping the (black) people dying down here.

Kopel's argument becomes exponentially sillier every time I read it. His rationale is that shooting the looters is necessary to restore "civic order" throughout New Orleans. What civic order??? The entire city is being evacuated, so there's no order to "restore." Does he not realize that the situation in NO is entirely different from, say, the 1992 riots in LA after the Rodney King verdict or the looting following the 1977 NYC blackout?

What's even more disturbing about Kopel's argument (and the media's obsession with looting over the past few days) is the singular concern for protecting property rights, wholly unrelated to any "self-defense" claim, in the face of unimaginable death and suffering. As Atrios astutely pointed out earlier today, regarding Dubya's "zero tolerance" toward looting:

Babies, children, the elderly are dieing because they don't have water or medical car. Bush doesn't give a shit. Property more important than people. Property which is perishable or destined to be destroyed by water damage anyway.

Hey, Nonymous, you cut and pasted that exact same comment against me over at the Volokh's! I feel cheated.

Since you seem upset ith Kopel's statement (you linked to it), I'm going to review why I agree with it.

"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."

So far, so good and I agree. But note: this is a form of looting for self-preservation. Food.

"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."

THIS is the form of looting he is refering to: non-self-presevation. You may try in order to make a point blur the distinction. Kopel is reference those people who are making ATTACKS on hospitals to steal NARCOTICS; those who make ATTACKS on stores for things NOT necessities. Food and water are needed. That new XBox is not.

"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."

Again, Kopel is referencing the second type of looter, not the first. And no, not "all looters are looters". The law of Louisiana (and Necessity as Kopel noted) makes the taking of food & water licit and permissible, the first type of looter. Kopel limits his comment to the second type and then only because of "the absence of a sufficient police presence in order to stop the looters".

So, how about addressing what Kopel actually SAID, not what you want to think he said?

I'll simply quote the horrifying, shocking, bestial comments of Judge Kozinski here. The Second Amendment is "the right that secures all the other rights."

I'd submit that when the state breaks its agreement to protect you, that *some* citizen action to bring insurrection under control is appropriate. I'd draw some serious lines here - "shoot all looters" is obviously morally wrong, given that many will have to steal food and water to live. "Shoot anybody with a TV" is also wrong, in spite of my earlier joking about it, unless the guy with the TV is in the process of committing home invasion, threatening bodily harm, etc.

But if a bunch of looters are ambling up your street, they are armed up, and order has completely broken down - what is wrong with a group of citizens taking concerted action? Sorry, but when the judges and cops leave town, there isn't a law any more. The only law left is power, and the more commercially oriented and predatory among the looters have it, and are looking to use it to do bad things. It's easy to armchair quarterback it from our comfy seats, but in a bad situation, the only "good" is to survive. I suppose it's a higher good if survival can be done without slumping into odious, animalistic behaviors, but there's a certain kind of looting - I'm thinking about the armed mob that attacked the NO Children's Hospital, or the armed gang that raided the nursing home and turned out 20+ elderly wheelchair-bound people into flooded streets in order to steal drugs. I'd avoid shooting anybody if I could avoid it, probably, but man, I'd be damned slow to start throwing stones at some citizen who did.

Given that the protectors provided by the state to guarantee the social compact - the NOPD - have been caught looting on a fairly widespread scale - perhaps you could tell us what the proper, civilized response is, when civil order falls apart. In my life, I've found Use of Deadly Force situations rarely play out as neatly as a law school hypothetical. My understanding is that in your world view, only the state is morally authorized to use violence against citizens. What to do then, when the state's agents are leading the crime spree, and doing little or nothing to stop the non-police elements of it? Is there lattitude for individual moral judgments? Have you not read any accounts yet of the gangs going around hunting police, raping women, and attacking first responders? That's CNN reporting that stuff, not me making it up. How should a group of citizens seeking to protect their families and selves, their neighborhood and their property, react to that?

Also, what was shocking about Orin Kerr's viewpoint? It was roughly 180 degrees contrary to Kopel's view.

. . . I strongly agree with Glenn Reynolds that such looters should be shot on sight by armed citizens.

I've been trying pretty hard, but I just don't see any qualifications in the above clause. Shooting all looters on sight simply isn't justified by the preceding analysis. Plus, there're these things called human fallibility, bad aim, racism, and retribution that all conspire to lay waste to the best-laid plans of upstanding, order-minded militiamen.

Bottom line: bullets should be fired only to protect lives in danger. Period.

I have to agree with nonymous, nothing will make New Orelans safer than gun weilding looters battling it out with gun weilding citizens over the booty.

Nothing.

I just want to know how they intend to get the HDTVs ont the buses.

A Nonymous;
In order to believe that "such looters should be shot on sight by armed citizens", it is necessary to believe the following things:
- The punishment for property theft (in any amount) should be death.
- Shooting somebody in one part of a city that is almost totally lacking in communications will somehow prevent other types of lawlessness elsewhere in the city.
- Individual citizens are always able to tell what constitutes bad looting as opposed to legitimate looting (or salvage of ones own property) without investigation.
- All people agree on where the threshold is for killing someone for looting. Ten big screen TVs? Two whitewall tires? A bottle of aspirin? What about ten bottles of aspirin? A paperback book? Disposable diapers? Fruit juice after all the water has already been taken?)
- The authorities will be able to flawlessly distinguish, after the fact and with no witnesses, which shootings were cold blooded murder or robberies gone wrong and which were brave defense of someone's aging VCR.
We have laws and hold trials for a reason. That reason doesn't disappear because someone is stealing your Barry Manilow CD. The reason they call what you're trying to stop "lawlessness" is that it's caused by people thinking that laws shouldn't apply any more. Agreeing with them is hardly an effective way to stop it.

I must say I find the extraordinary sollicitude displayed for the (most likely heavily insured) owners of plasma televisions and Rolex watches a little difficult to understand. The vast majority of these luxury goods are facing total destruction by flood in any case.

Surely all but the most extreme defenders of property rights will agree that the extralegal redistribution of property to the poorest classes is, in general, morally preferable to the wholesale wasteful destruction of that property and its associated use-value?

Armed gangs hijacking food and medical supplies are one thing; trivial incidents of larceny in an area doomed to almost total destruction another entirely. It is unconscionable for police and troops to waste their time worrying about the latter when so much else must be done. There are lives at stake; no one should be giving a damn about the fate of the last few high-priced commodities owned by the absent middle and upper classes of New Orleans.

The one true thing A. Nonymous has said is that the use of lethal force rarely plays out like a law school hypothetical.

In law school hypotheticals, our professors tell us facts, and we accept them as edicts from on high, and then we draw conclusions from them. "A shoots B, whom he believes, albeit unreasonably, is attacking him with lethal force." And we just run with it and find the legal result.

Problem is, in real life, who knows what people believe. Now, odds are, people actually IN New Orleans can't read sunken chested guy's advocacy of violence on this here internets. Not right now, at least. But I bet most of them have intuitively figured out that its awfully tough to tell the difference between a looter and a nonlooter, and its REALLY tough to tell the difference between a looter and a "noble citizen exercising his god given second amendment rights in order to restore order to society" after the latter individual has had his fool brains splattered across the pavement by someone else equally ambiguous.

Try this law school hypothetical- A shoots B. A claims that B was looting a store. B's family claims that B was protecting the store from being looted in order to protect society. A's family says the same thing about A. That's all you get to know. How do you rule?

No matter how you rule, reality has already issued a verdict. A is stone cold dead. Hope he was a bad guy.

Actually, Patrick, I said life in emergencies doesn't unfold like law school hypotheticals. I say this from having worked humanitarian relief missions with the UN and other organizations.

I'll point simply to the medical relief convoy that got shot up by gunmen this morning to make my point. A little bit of citizen self-help directed at the armed gangs might be in order there - or is the notion of citizens imposing law where no law otherwise exists, anathema to you? I'd submit that a neighborhood banding together when civil order disintegrates, in order to impose order in their own corner of the world, is a good example of direct, participatory democracy. The only difference between activities like that, and your preferred method of waiting for the corrupt, quitting, and outmanned NOPD, is that the political unit is smaller, and they have hired themselves, instead of some particular individual, to conduct the law enforcement activity.

Oddly enough, I was in the Tuzla area not long before the great massacre. The Bosnians were herded into shelters and told "the authorities" - Dutch troops, primarily, operating under UN imprimatur - would protect them. Had those several thousand Bosnians been armed, and taken matters into their own hands, the several hundred Serbs who loaded them into trucks and marched them away, could not have committed the massacre. This and other bits of genocide and mass murder I've witnessed, temper my views about the law. It's a nice overlay on society and human nature when everybody, more or less, agrees to abide by the rules, and when there are mechanisms in place to capture wrongdoers and carefully mete out punishment. When no such mechanisms exist, the rule is to survive, and to act as morally as you can under the circumstances. Yep, your law school hypo sure sounds pretty dandy. I'm sure that several thousand dead Bosnians would find it fascinating, were they alive to do so.

How long should the citizens wait, before taking action Patrick? Should they do it when the liquor, gun and electronics stores are being looted? Should they wait until the medical and water convoys are being ambushed, thereby ceasing the flow of relief supplies? Should they wait until somebody comes around to rape or kill? Or should they wait indefinitely, based on increasingly lame and ineffective federal, state and local promises of relief and protection?

And just as a point of fact, I don't have a sunken chest, I'm a former paratrooper, still play contact sports and work out regularly, along with practicing law and trying to argue reasonably with people whose best argument involves condescendingly implying I'm an illiterate weakling.

I'll point simply to the medical relief convoy that got shot up by gunmen this morning to make my point.

Could one not hold that it is both

a) legitimate to defend a medical convoy with lethal force if necessary

and

b) illegitimate to shoot someone because you think they were looting the local supermarket?

Why do all these examples quickly move to the extreme situation of defending a hospital or one's own home, as if what we say in that situation is dictated by what we say about shooting people, after the fact, because you decided they looted something?

Agreed, Michael. I find a great moral distinction between shooting up relief convoys, and raiding the local Piggly Wiggly for bread and canned tuna. I also find a significant distinction between a gang of thugs knocking over a gun shop, to arm up in order to go hunt cops and commit organized mayhem, and taking a bunch of DVD's from a store.

When civil order dissolves, I believe the question then is, to paraphrase Mencken, the exact moment at which it's proper to hoist the black flag. I'm with what you seem to be implying, that the moral distinctions are important - where there is no effective law only morals are left to guide us. I haven't seen anybody say that taking bread and bottled water is "looting" worthy of mention, but I have seen the people pointing at the armed gangs, the folks attacking hospitals (e.g. Charity Hospital) to loot the pharmaceuticals as being on the other side of the coin.

I would want to be on the ground, looking at the situation, before I felt capable of passing judgment on use of force in the NOLA context; and even then I'd hesitate to pass judgment quickly on others. When something is within our frame of reference - as in a robbery of the local liquor store, in ordinary times - we can judge because we understand the context. In this case, I can't presume to be walking a couple miles in the wet shoes of the other guy.

Al Maviva finds a great moral distinction between attacking relief convoys and raiding groceries for food. And so does Dave Kopel. But apparently, either Eric Muller doesn't see that difference, or he didn't read what Kopel wrote.

Kerr is right, but
it seems to me that this is a good issue to use to explore the role of the federal government. If the federal government has a justifiable role in maintaining levees, it is not to protect New Orleans from flooding, but to maintain Mississippi traffic lanes that are useful to many states. Why shouldn't we expect Louisiana and New Orleans to undertake the appropriate level of expenditures to protect against floods in New Orleans. Over the next decades, if progressives are going to achieve many of the things that are part of the progressive agenda, they are going to have to do it through state and local (the closer to the grass roots the better) action.

Dont forget it

By arguing that efforts to stop looting (and yes, at this point the only way to stop it is by firing) are wrong, you are against the defense of self by extention. How? Because when lawlessness against PROPERTY is allowed, lawlessness against PERSONS is right behind. Witness the reports of mass rapes in the Superdome running on CNN. Witness the reports of snipers firing on Charity Hospital on CNN.