STEPHEN L. CARTER: Hungry Harvey Victims Have Committed No Crime: Peacefully taking what you need from a supermarket isn’t the same as looting.

Were the reporter’s critics right? 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.

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.

More at the link.