Why Hurricane Katrina's So-Called Looters Were Not Lawless: They Are Entitled to the Well-Established Defense of Necessity

By LUNDY LANGSTON

Tuesday, Sep. 13, 2005

This is one in a special series of columns on legal issues arising in the aftermath of Hurricane Katrina. - Ed.

We have watched, night after night, footage of the plight of the citizens in New Orleans in the wake of Hurricane Katrina. We have watched some of them wait three or four days without food and water. We have watched some of them witness people dying all around them, not knowing if they would be next. We watched their horror when it appeared that no one was coming to help. We saw the anguish, distress, and despair in the children, the elderly, the fathers, and the mothers.

Watching, we too felt horror and frustration, but we watched from a totally different point of view than theirs. We viewed their dismay on television night after night. We listened on the radio. We clicked on our computers. But they watched from a front-row seat.

The lacked access to radio or television, or even to a guide who pointed and said "that way is the way to higher ground, to safety." They had nothing, and they saw death and dying daily, perhaps hourly. They dredged through the water, day after day, night after night with no relief in sight: water that was contaminated with sewage, and in which dead bodies floated. They contended with frightened babies, sick and elderly relatives, and even alligators.

They dredged through, doing everything that they knew to stay alive. They thought and hoped help was coming. But after enduring days without food or water, and without access to radio or television to know that help was on the way, they stole to save their lives and the lives of their loved ones.

Many have argued that their "looting" was morally justified. But what has been much less widely reported, is that actions taken out of necessity can be legally justified, too.

The Longstanding Criminal Law Defense Of Necessity

The law allows people to use the defense of necessity to commit acts that would be criminal if there was no necessity.

Yes, some victims of Hurricane Katrina stole. It was not their property and it was a crime: theft. But necessity is a defense.

Of course, there are certain restrictions. You cannot kill another person and invoke the defense of necessity - no matter what the circumstances might be. But you may commit burglary or theft to protect yourself from death or serious bodily harm.

There are limitations on the defense, however: There has to be an immediate threat of death or serious bodily harm. That threat has to be caused by nature, not man-made (and especially, not created by the individual invoking the defense). There can be no reasonable alternative means to prevent the impending threat, other than the theft.

And finally, the individual is only permitted to do what is needed to ward off the impending threat; the necessity of stealing bread or baby food is not a license to steal books and magazines, too.

(Sometimes, the defense of necessity is confused with the argument that a crime was justified because it was done in self-defense. But they are separate. As noted above, necessity cannot justify what would otherwise be murder, but self-defense can. Still, the defense is only available to an individual who fears his or her life is endangered - that is, one who faces a threat of death or serious bodily harm. In addition, if one is threatened with harm that does not rise to the level of a threat of death or serious bodily harm,

the doctrine of self-defense still permits one to use reasonable means to defend oneself.)

If Ever There Was the Necessity to Steal, It Existed in Post-Katrina New Orleans

All of the elements of necessity were present in New Orleans. There was an immediate threat of death, from the flooding, the contaminated water, and the lack of food and usable drinking water. The overall threat was certainly caused by nature - specifically, by a hurricane, a category 4 or 5.

But were some specific threats more accurately described as being caused by the individual? One could make the argument, but it would not be very persuasive.

For instance, one might argue that residents who stayed in their houses could have left and gone to the Superdome instead, as it was the city's "shelter of last resort," and would not have had to steal. But did they have a way to get there? Was there, in effect, a limitation on how many could be crammed in?

And what if residents tried but failed to procure better shelter? As reported in the media, some of the individuals indicated that they attempted to go to hotels but when they arrived at the hotels, they were required to make a $1,000 deposit, coupled with the hotel fee.

What about another component of the defense: Were there no other reasonable, alternative means for New Orleans "looters" to protect themselves, without committing the criminal act?

In many cases, it's obvious that "looting" was indeed the only option. The AP reported that, in the first few days after New Orleans flooded, local police took a "relatively relaxed attitude" about so-called looting of necessities such as food and water, andthe police chief and mayor said they "understood people were trying to survive."

Indeed, at a Wal-Mart, police officers themselves "looted" -- apparently seeing a need to do so. And one of thecivilian "looters" indicated, when interviewed on television, that she broke into a store to steal shoes because her feet were being cut as she walked through the water trying to find food, higher ground, a place of safety. Did she take what was necessary to ward off the threat? Yes: she took shoes.

And even those residents with less specific and urgent needs could have reasonably seen looting as their only option. One would have been foolish, in post-Katrina New Orleans, not to stock up on food, drinking water, and blankets. These could mean the difference between life and death, and residents knew it.

Morally, Life Is More Important Than Property - And the Law, Fortunately, Agrees

The response of the government to Katrina has been heavily and rightly criticized. It might have been improved if the National Guard, the police, and FEMA had specifically authorized "looting," and even had done it themselves.

After all, the government has the wealth to later compensate property owners, if their insurance does not cover the loss. And the Fifth Amendment expressly allows the government to take private property for a public purpose, as long as just compensation is paid.

We did not see police officers breaking shop windows and handing needed items to the people. But they should have. Such acts by the police probably would have prompted the people not to steal, and would certainly have permitted the police to have better control over those who were outraged at being told they could not take the things they and their families - including babies, children, and the elderly - urgently needed to live.

Did the officers know about the defense of necessity? They should have.

Some officers rightly let the victims of the hurricane steal, but did they do it because they knew of the defense of necessity? Probably not. Because if those officers were aware of the defense of necessity, they would have known that they too could, and should, have stolen for the safety of the people.

We don't permit people to kill in order to protect property. So why, then, would we permit people to die in order to protect property?

What's especially appalling is that the "looted" property would, more likely than not, have ended up being damaged, destroyed, or made unusable because its "sell by" date passed, even if the looting had never occurred. Is protecting the principle of property rights more important that protecting human life and health?

"Looters" Should Not Be Blamed For Merely Protecting Human Life and Health

The "looters" did what they had to do to save themselves. Indeed, we shouldn't call them "looters" at all, any more than we would call a victim who shoots solely in self-defense a "murderer."

Of course, I don't condone stealing under ordinary circumstances. But the aftermath of the hurricane created an extraordinary circumstance - indeed, one of the most extraordinary this country has recently seen.

The defense of necessity is the law and I am only stating what the law allows. These individuals are entitled to the defense of necessity and should not be deemed "looters." And they were entitled to help without the further threat of death -- this time, by guns. It is appalling that the responders turned guns on the very people they were sent to help.


Lundy Langston is a member of the Founding Faculty at the Florida A&M University College of Law. She previously taught at Nova Southeastern University Shepard Broad Law Center, Tulsa College of Law and North Carolina Central University School of Law. Her teaching and research interests include Domestic Violence and Cyber Law, Criminal Law, Juvenile Law, Family Law, Criminal Procedure, Race and the Law, Women and the Law, and Jurisprudence.

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