The Volokh Conspiracy

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Volokh Conspiracy

Of Course "When the Looting Start, the Shooting Starts"

"Chang Lee gripped his fingers tighter around the gun and screamed at potential looters from the rooftop of the small strip mall where he stood."


Twitter flagged President Trump's below with the label, "This Tweet violated the Twitter Rules about glorifying violence. However, Twitter has determined that it may be in the public's interest for the Tweet to remain accessible"; it also hid the Tweet so that it wouldn't be visible until people clicked on it (which I'm pretty confident they would).

It seems that, if a similar message was posted by an ordinary user, and people complained to Twitter, Twitter would delete it under its "glorification of violence" policy, which says "You may not threaten violence against an individual or a group of people. We also prohibit the glorification of violence." (UPDATE: Politico notes that "The company also barred individuals from retweeting Trump's post but only after it had been shared more than 23,000 times.")

But of course looting does tend to lead to shooting (not invariably, but "when X starts, Y starts" is a figurative way of describing a tendency, not a logical certainty). Under Minnesota law, it's legal for ordinary citizens to use deadly force to prevent "an offense which the actor reasonably believes exposes the actor or another to great bodily harm [which could be as little as a lost tooth] or death" or "the commission of a felony in the actor's place of abode."

This means that deadly force can't lawfully be used by store owners just to prevent looting of their stores—but nondeadly force can be used to defend property (and even just to prevent trespass), and then if the attackers start to threaten the lawful defender with death or great bodily harm, the defender can use deadly force to defend against that. To quote the Model Penal Code, which I think captures well the underlying principle (though I haven't found Minnesota cases specifically on this point), use of deadly force is allowed if

the person against whom the force is used is attempting to commit or consummate arson, burglary, robbery or other felonious theft or property destruction and either:

(A) has employed or threatened deadly force against or in the presence of the actor; or

(B) the use of force other than deadly force to prevent the commission or the consummation of the crime would expose the actor or another in his presence to substantial danger of serious bodily injury.

What's more, under Minnesota law police officers are also entitled to use deadly force "to effect the arrest or capture, or prevent the escape, of a person" when the office reasonably believes the person (a) "has committed or attempted to commit a felony involving the use or threatened use of deadly force" or (b) "will cause death or great bodily harm if the person's apprehension is delayed." Lots of possibilities of legal shootings there. The "when the looting starts, the shooting starts" phrase was apparently made prominent by Miami Police Chief Walter Headley in 1967, and may well have been used then to threaten possibly illegal shootings by police officers. But it certainly covers (especially when expressed by someone who isn't himself giving the orders, but talking about what others might do) the risk of justified police shootings as well.

There are also possibilities of illegal shootings by citizens defending themselves, or shootings the legality of which will be impossible to determine. And there is the risk of other deadly violence, whether by defenders or by other looters who think the chaos gives them a safe way to do what they like. You go into a lawless zone where mobs of people are doing lawless things, and you might become the victim of lawlessness.

And of course one deterrent to looting is precisely the risk of shooting, legal or illegal. I suspect that if a child of yours was thinking of going out with some looters, you'd warn him of the risk that he'll die or be seriously injured. If someone was about to loot your store, and you were armed, you might warn him of the same thing:

Chang Lee gripped his fingers tighter around the gun and screamed at potential looters from the rooftop of the small strip mall where he stood. The 35-year-old had never held a firearm before the LA riots. Lighting up the blocks around him, Lee could smell the fires burning in Los Angeles' Koreatown.

Under Minnesota law, it appears that "simply firing a gun into the distance does not meet the definition of deadly force," and may thus be permitted even just to protect property; neither would simply brandishing a gun and threatening to use it. And if the looters keep coming in the face of such a lawful threat (thus reasonably leading the defender to fear for his life), deadly force may become lawful, too. I wouldn't go as far as Vice-President Biden in saying, "[if] you want to keep someone away from your house, just fire the shotgun through the door"—not generally sound advice, legally speaking—but when law and order temporarily collapses, I expect some similar behavior, including by people defending their businesses.

More broadly, one tool the American legal system uses to prevent looting and other crimes is precisely the implicit threat that people who do that might get shot. All criminal laws are ultimately backed by the threat of violence (arrest), including indirectly the threat of deadly violence (potential shooting if you violently refuse to go along with the arrest). But laws against looting, I think, are even more clearly backed by the threat that someone, whether police or otherwise, will shoot.

It's not unconstitutional for Twitter to block tweets that express this sentiment. Twitter isn't the government, and thus isn't bound by the First Amendment. Nor does Twitter violate any statutes in blocking such tweets (again, Twitter didn't block Trump's tweet, but I take it that its message is that it could block the same tweet from a private citizen). Nor does it lose immunity from defamation liability based on other tweets by blocking this sort of tweet.

But I do think this example helps show why people are concerned about Twitter's policies, and the dangers that they will restrict (to be sure, just on this one privately owned but very important platform) legitimate discussions and warnings.