Give Me Back My Bicycle: the Use of Force to Recapture Chattel According to American Law and Jewish Law

• Citation: Vol. 16 No. 2
• Publication year: 2013

Gonzaga Journal of International Law Volume 16 - Issue 2 (2012 - 2013)

Give Me Back My Bicycle: The Use of Force to Recapture Chattel According to American Law and Jewish Law

Ephraim Glatt(fn*)

I. Introduction

II. American Law

A. Self-Help Privilege

B. Limitations on Recapture of Chattel

1. Wrongful Taking

2. Entitlement

3. Timeliness

4. Demand/Warning

5. Proper Purpose

6. Amount of Force

C. Justifications

III. Jewish Law(fn1)

A. Talmudic Passage

B. Rabbi Nachman Reexamined

C. Limitations

1. Limitations Analogous to American Law

2. Dissimilarities to American Law

D. Justifications

1. Maimonides

2. First Approach: Reparable Loss as Irreparable Loss

3. Second Approach: Separate Right or Power

IV. Observations

A. First Observation: Justification Explains Limitation

B. Second Observation: Inherent Good of the Individual

V. Conclusion

I. Introduction

Reuben buys an expensive new bicycle and rides it all over town. Simon eyes the bicycle enviously and makes plans to steal it. When Reuben locks the bicycle to a tree outside the ice cream store, Simon jumps at the opportunity. Using his bolt cutters, Simon cuts the lock and mounts the bicycle, leaving the bolt cutters on the ground. At that moment, Reuben comes out of the store and sees Simon sitting on his bicycle. Hoping to prevent Simon, whom he recognizes from the neighborhood, from riding off with his new bicycle, Reuben picks up the bolt cutters and hurls it at Simon. The bolt cutters hit Simon directly on the head, leaving him unconscious on the ground. Reuben retrieves his bicycle and rides off, noting the need to get a better lock for his bicycle. Simon is taken to the hospital and suffers numerous injuries from the hit.

Self-help in the law is often defined as "legally permissible conduct that individuals undertake absent the compulsion of law and without the assistance of a government official in efforts to prevent or remedy a legal wrong."(fn2) The above anecdote discusses one potential self-help scenario: Reuben retaking his stolen item on public property by use of force, absent any physical danger to Reuben. Yet, this "legally recognized alternative or substitute for a judicial remedy . . . may become unlawful when a self-helper oversteps the limits of the privilege."(fn3) It is thus incumbent on all legal systems to "identify potential self-help situations and the legal boundaries of appropriate self-help responses."(fn4)

Further contemplation of the Reuben and Simon anecdote helps underscore the need for these legal boundaries. Is Reuben criminally liable for throwing the bolt cutters at Simon? What if he had killed Simon? Must Reuben pay Simon's medical bills? Can Reuben wait until the next day to attack Simon and retrieve his bicycle? Assuming that Simon escaped with the bicycle, could Reuben legally keep the bolt cutters in lieu of the bicycle? These are only some of the many self-help questions with which every developed legal system must grapple.

Thankfully, "self-help is by no means a nascent legal phenomenon."(fn5) Rather, "[i]n various forms, self-help has been a familiar remedy in society since the initial stages of civilization."(fn6) In fact, almost "[e]very legal system addresses itself to the issue of self-help."(fn7) The American legal system and the Jewish legal system, or "Halacha," are no exceptions. Both of these systems have extensive laws regarding the self-help privilege, albeit with important differences. Studying these discrepancies, especially ones related to the limitations and justifications of the privilege, helps better our understanding of the complex legal theory behind this doctrine.

This Article discusses the American and Jewish legal systems' diverse views on the specific issue of retaking an item on public property by use of force, in the absence of physical danger to the self-helper. Part II of this Article details the history of American law in relation to the self-help privilege and gives the current state of the law in many jurisdictions. It focuses primarily on the American legal system's limitations and justifications of this privilege. Alternatively, part III of this Article examines the Jewish law's perspective on the self-help privilege. Examining the Talmud and its classical commentators, the section focuses on the Jewish system's limitations and justifications of this privilege. Part IV of this Article analyzes the discrepancies and identifies two observations.

II. American Law

A. Self-Help Privilege

"Self-reliance, perseverance, ingenuity, and the noble notion of rugged individualism have been pervasive themes in the American lifestyle since the precolonial era."(fn8) As such, an organized judiciary exists "despite its apparent contravention of American wherewithal and human nature, partly because the courts and laws provide an adequate and efficient alternative for redressing wrongs."(fn9) Yet, "[t]he American legal system also owes its durability to its effective incorporation of a significant number of the common individual methods of dealing with others that predate the system's refinement to its current dignity."(fn10) "American courts were sophisticated enough to recognize that self-help was an efficient alternative to traditional judicial remedies, and it was later codified into various diverse areas of the law."(fn11) By adopting these lawful self-help privileges, the founders of America effectively alleviated "the longstanding tension between the imperatives of an established system of laws and the individual needs and desires to avoid and remedy injury as effectively and efficiently as possible."(fn12)

One of these privileges "recognized" in American law is "[t]he privilege of an owner dispossessed of his chattel to recapture it by force against the person."(fn13) While recaption of chattels is merely a small part of self-defense and defense of property law, many cases over the last two hundred years have developed this privilege quite extensively.(fn14) Since peaceful legal recourse is usually available through the judicial system, numerous conditions must be present for a self-helper to use force to recapture chattel, thereby severely limiting the use of self-help force.(fn15) "A self-helping . . . owner who cannot meet these prerequisites runs a risk of liability because the privilege to recover . . . will not have attached."(fn16)

B. Limitations on Recapture of Chattel

1. Wrongful Taking

"Courts view tortious dispossession . . . as a threshold requirement for recovering property."(fn17) Tortious dispossession occurs "without a claim of right" or taking "with a claim of right, but by force or . . . fraud."(fn18) Thus, an owner may use force to recover a stolen item, as the thief took it "without a claim of right."(fn19) Accordingly, force could be used against a third party who acquires the stolen goods, so long as the third party knows of the illegal origin of the goods.(fn20)

The parameters of recapture of an item taken from the self-helper "with a claim of right, but by force or . . . fraud" are less defined.(fn21) Although "actual violence" is unnecessary, there must be a "fraudulent misrepresentation made by the other" that "induces" the self-helper to give up the item.(fn22) Thus, courts were initially hesitant to allow a seller to forcefully retake goods from a buyer after a default, as this did not constitute "fraudulent misrepresentation."(fn23) Recent cases, on the other hand, have indicated that such force would be privileged.(fn24) It is certainly clear though, that a creditor may never use force to collect collateral from a debtor.(fn25)

2. Entitlement

Force is only privileged when the self-helper "is entitled as against the other to the immediate possession of the chattel."(fn26) "Since the actor must be entitled to immediate possession as against the other, an erroneous belief that he is so entitled, due to a mistake of law or fact, however reasonable, does not create the privilege."(fn27)

3. Timeliness

"Courts also require that the attempted recapture occur immediately after dispossession or upon 'fresh pursuit' of the wrongdoer."(fn28) While the meaning of "fresh pursuit" has never been defined by the courts, it is clear "that it is limited to prompt discovery of the dispossession, and prompt and persistent efforts to recover the chattel thereafter."(fn29) An "undue lapse of time during which it may be said that the pursuit has come to a halt" would seemingly be outside the scope of the privilege.(fn30) Notably, some leeway has been given.(fn31)

Additionally, "not only must the retaking be promptly made after discovery by the actor of his dispossession, but his discovery must be timely."(fn32) Therefore, "if by reasonable diligence he could have known of it at an earlier time," force is not privileged, even when "he acts promptly after he knows of his dispossession."(fn33)

4. Demand/Warning

"A resort to any force at all will not be justified until a demand has been made for the return" of the item.(fn34) The self-helper must "first request[] the other to give up possession" of the item.(fn35) An exception to this condition exists where the self-helper "correctly or reasonably believes a request to be useless, dangerous to...