Is it burglary or is it looting? A legal look at police force in the BLM protests

Posted by Olivia Hartman on June 3, 2020

Is it Burglary or Looting?  BLM

June 3, 2020

By Olivia Hartman, Policy Analyst at Margolin & Lawrence

Current conversations on police use of force and brutality, otherwise known as retaliation measures, have been circulating among many social and political spheres. An essential part of participating in a protest movement is understanding the difference between looting and burglary, as it has been in previous discussions related to civil unrest. Both crimes consist of the same elements, and bear the same potential sentences, but are treated as two completely different crimes. 

This story sets off with Trump’s infamous tweet: 

“These THUGS are dishonoring the memory of George Floyd, and I won’t let that happen,” he declared in a second tweet. “Just spoke to Governor Tim Walz and told him that the Military is with him all the way. Any difficulty and we will assume control but, when the looting starts, the shooting starts.”

The question we are currently dealing with is when can police and property protectors use force?

The issue isn’t necessarily about using force than it is about inflicting lethal force.  As legal scholars have pointed out, following Trump’s aforementioned policy proposal completely violates the Fourth Amendment.

Property owners, commercial and residential alike, are concerned about their properties and belongings amidst protests in the wake of George Floyd’s death (among others such as Breonna Taylor and Tony McDade). Looting, while undeniably destructive, has blatantly ignored the central issue: that looting damages are a distraction from the hidden cost of police misconduct. 

Today many state laws, California and Minnesota included, put forth that one can use force to merely defend oneself in their home or on their own property. One can use physical force, but not lethal force. Police are using this to their advantage by instigating looters to use physical force thereby giving them grounds to use deadly force. Responding with force, when used as protection, must be within reason, and it by no means justifies taking someone’s life - as obvious as it seems, this appears to be a point of controversy for some fraction of the police. 

It might be helpful to refer back to the Tennessee v. Garner case, 471 U.S. 1 of 1985. The civil case resulted in the Supreme Court of the United States confirming that under the Fourth Amendment, when a law enforcement officer is pursuing a fleeing suspect, the officer may not use deadly force to prevent escape unless "the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." 

Back in 1985 it was established that deadly force to prevent escape is an unreasonable seizure under the Fourth Amendment, in the absence of probable cause that the fleeing suspect posed a serious threat of death or serious physical injury to the officer or others.

As of now, it is not unheard of for police or property owners to shoot and kill presumed looters and face no consequences for their actions, even when the looter was attempting to flee. 

How does the police respond? 

It has been propagated that the police are now planting combative material, not for themselves or for the protection of property owners, but to encourage violence from looters and protestors so that the police can in turn justify their own retaliation measures using life threatening weapons. On Wednesday NYPD Commissioner Dermot Shea tweeted a video of police officers next to a crate of bricks, with the caption, “This is what our cops are up against: Organized looters, strategically placing caches of bricks & rocks at locations throughout NYC.”

While the strategic placement of bricks by the police is still undetermined, what we do know is that in cities across the country, protesters have been reporting that protests are largely peaceful until officials escalated violence with tear gas or rubber bullets. (

A legal look at looting, burglary, theft, and its ramifications:

Definition of looting in accordance with Penal Code 463 PC:

 "...Every person who violates Section 459, punishable as a second-degree burglary...during and within an affected county in a “state of emergency” or a “local emergency” resulting from an earthquake, fire, flood, riot, or other natural or manmade disaster shall be guilty of the crime of looting, punishable by imprisonment in a county jail for one year."

A “state of emergency” or “local emergency” means conditions which, by reason of their magnitude, are or are likely to be beyond the control of the services, personnel, equipment and facilities of any single county or city—and thus require the combined forces of several regions to combat.

The Penal Code (463) of California is ideally supposed to protect people’s property during state of emergencies. However, the reality of the situation is that police and prosecutors regularly use the code to punish people who only wish to exercise their right to free speech, peaceful and non-peaceful protestors alike. 

In order to be convicted of violating California’s looting laws under California Penal Code 463, the prosecution must prove all of the following elements beyond a reasonable doubt:

  1. You committed burglary or theft under California Penal Codes 459 and 484;4

  2. When you committed the alleged acts, you intended to commit burglary or theft; AND

  3. You acted during and within an affected county in a “state of emergency” or a “local emergency” resulting from an earthquake, fire, flood, riot, or other natural or manmade disaster.

In order to prove the element of burglary, the prosecution must prove beyond a reasonable doubt the following:

  1. You entered a building or locked vehicle; AND

  2. When you entered the building or vehicle, you intended to commit theft (all) or one or more felonies. 

Defenses for those arrested for looting?

A popular affirmative defense, recognized by the courts, used by many skilled attorneys is the “defense of necessity”  which argues protesters were acting in “good faith.” If, during an emergency, you committed theft or burglary in good faith, you should not be convicted of the crime of looting. For example, if you took supplies from a hardware store to save a dog or a child from a burning vehicle or took medical supplies from a pharmacy to treat your wounds or another’s wounds caused by events surrounding the emergency situation. The crime was necessary to avoid a greater danger or harm.

However, there are other defenses that are completely viable in certain circumstantial situations. For example, The police who arrested you might have violated “search and seizure” laws. Looting charges regularly arise from arrests made during riots and protests. During these unsettled situations police are typically nervous and agitated. Given the emotional circumstances, police often act irrationally, making arrests without a California arrest warrant or probable cause to believe you were committing an offense. A hunch that a crime has happened or is in progress is not probable cause. The officer must have “articulable facts” that would cause a reasonable police officer to conclude that a crime has occurred or in progress. Mere presence at a crime scene is not enough.

Difference between looting and commercial burglary 

As previously mentioned, looting is based on the implementation of a “state of emergency” declaration by the state or federal government. Another essential element to consider in the differentiation between looting and burglary is bail

Zero Dollar Bail Act of CA

The Zero $ Bail Act was a tool implemented by the Judicial Council of California to appease the public’s desire for lower incarceration levels. Issued April 6, it resets to zero the presumptive bail amount for people arrested for misdemeanors and many nonviolent felonies.

What isn’t immediately apparent but soon becomes evidently clear: the order allows them to detain suspects, just as before, if they can convince a judge that releasing the person would pose an unacceptable risk to public safety. Cops and prosecutors just have to get the defendant to court and then make a somewhat persuasive case against release. In other words, defendants can still be held without bail on a judge’s order. The defendant could wait weeks, up to months, for their bailout hearing. 

This act creates situations where suspects can no longer be held or released based on how much money they have or can raise for bail. 

On May 29, in Minneapolis - Amid the chaos of burning and looting along Lake Street Wednesday night a man with a fatal gunshot wound was found on the sidewalk outside Cadillac Pawn and Jewelry. A short time later police arrested a 57-year-old Wisconsin man who is listed in city records as the owner of that south Minneapolis store.  As of Thursday evening the man was still being held in Hennepin County Jail with charges pending.

What happened to the “presumption of innocence?” A fundamental principle of justice recognized by the Supreme Court that ensures basic constitutional protection? The Zero Dollar Bail Act is just another sliver shaved off of our constitutional rights. 

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