By Rabbi Yair Hoffman for 5TJT.com
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He had an 18 inch Ozark Trail machete, and he tried murdering Jews. Grafton Thomas is also 6”5 and over 200 pounds. The journals that Thomas left behind mention the Black Hebrew Israelites, Adolf Hitler, and some more anti-Semitic references. His former stepfather, Joe Kennedy informs us that Grafton Thomas, age 37, identifies as a Muslim. During the attack he told everyone, “No one is leaving.”
Someone threw a table at him. After he tried entering the shul next door and was blocked – he eventually escaped into his car and another person memorized his license plate.
Our question is, however, what is the halacha when dealing with Grafton Thomas?
Boruch Hashem, none of his stabbing victims have passed away. Since he tried to kill them, however, does he still deserve the death penalty from the perspective of halacha?
THE GEMORAH
The Gemorah in Sanhedrin 58b states in the name of Rabi Chaninah that an oved kochavim who strikes against others [in a terrorist act] incurs death as it says vayifen cho vacho – vayach es haMitzri (Shmos 2:12). The implication of this Gemorah is that Moshe Rabbeinu put him to death in that first Egyptian Grafton-Thomas-like case – even though no one was killed.
FASCINATING CONTRADICTION IN RAMBAM
The Rambam in Hilchos Chovel uMazik (5:3) rules that the terrorist has incurred the death penalty – and he cites our pasuk regarding Moshe Rabbeinu.
However, there is another Rambam in Hilchos Malachim (10:6) which states that the “incurred death penalty” is only in heaven – and he is not put to death in a Bais Din.
It seems that the vast majority of commentators explain that there is no contradiction, and the total view of the Rambam is that the death penalty is only in Heaven. In our case, at the time of the actual attack there was certainly danger to life and the guy who threw the table at him certain would have been permitted to kill him as well. Our question is regarding the guy that took down his license plate – would he have been permitted to kill him?
THE GEMORAH’S USE OF THE VERSE
How then do we view the citation of the actual death penalty imposed by Moshe Rabbeinu? According to the Kesef Mishna in Malachim – the verse is an asmachta – a verse used by the Talmud that alludes to a future concept, but not a true proof.
The Radbaz in Hilchos Malachim explains that in the case of Moshe Rabbeinu and the Mitzri – the Mitzri did not actually violate the Sheva Mitzvos Bnei Noach – as he did not kill the person – therefore the death penalty is only from Heaven.
The Mishna LaMelech in a sefer entitled Parshas Drachim (Derech Dovid, Drush 10 cited in an article by Rabbi Yehudah Zoldan in the journal Oiz p.298) explains that Moshe Rabbeinu killed the Mitzri – through the implementation of the Heavenly death penalty [we can’t do this, however]!
The RaN in Sanhedrin, however, disagrees with the Rambam and writes that the Gemorah indicates that the terrorist can be put to death. Thus, the guy who wrote down the license plate could have shot and killed him! According to the Ran – the verse is not an Asmachta – but a full-fledged proof.
KILLING BEFORE TRIAL
The law of the United States is that vigilante justice is forbidden – whether this applies to the license plate guy is a good question. There are three doctrines that exist in U.S. law and one more concept that is still unclear as to its parameters (at least to this author): There is the Castle Law, there is the Stand Your Ground Law, and there is the Duty to Retreat Law. Each of the fifty states have a different approach to these concepts. The Castle Law essentially holds that that one’s abode is a special area in which one has immunity, and that one can defend oneself against attack. Stand Your Ground Laws expand the area of the abode to include any place where you have the right to be. Florida was the first state to have a Stand Your Ground law – but about half of US states now have them.
The fourth concept that needs further legal clarification is the “Fleeing Felon Law.” Does it apply to non-police officers? Since there is a strong likelihood that Grafton Thomas would strike again – it could be that the license plate guy would have been justified to shoot him if he had been carrying a gun – even though Grafton Thomas was running away. We will leave it to the lawyers to discuss US law. [Some applicable marei mekomos are Tennessee vs. Garner (1985) and People vs. Couch (1990).]
Our concern is the halacha. By Torah law, could “license plate spotter” shoot an escaping Grafton Thomas before he is brought to trial and there is no longer an imminent danger? Is he obligated to wait until (or if) the police catch him, or can he shoot him on site – even though he is leaving the scene?
CATEGORY OF NON-IMMINENT BUT ACTIVE-LIFE-THREATENING-DANGER
This author would like to argue that from a halachic point of view (and not addressing the as-yet-unresolved legality of the issue) – he may do so because the fact that “a Grafton Thomas is at-large” – is an active life-threatening danger to others – even though it may not be imminent.
This concept can be seen to exist in the Rambam Hilchos Chovel uMazik (8:10,11) where he employs the term, “huchzak limsor.”
In 1982, this author posed a similar question to Rav Moshe Feinstein zt”l as to whether or not association and identification with a Nazi group advocating death to Jews in and of itself qualified the person as a rodef. Rav Feinstein responded that it did, but severely limited any practical repercussions. It may be argued that this case is different because he has demonstrably committed attempted murder, whereas in the case posed to Rav Feinstein, there was no active attempt to kill anyone.
The case of Grafton Thomas is clearly one of “huchzak lidkor” so to speak, and – even though he was running away, a fleeing felon, it can be argued that he may be shot.
NON-ACTIVE-LIFE-THREATENING FELONS
However, aside from the active life-threatening danger concept – there seems to be a halachic debate as to the underlying idea of whether a court ruling is necessary.
The Minchas Chinuch in several places argues that a Beis Din court ruling is not necessary (See 409:5 and 410:9). Although Tosfos in Avodah Zarah 64b (“Aizehu”) seems to indicate otherwise, the Minchas Chinuch states that this Tosfos merely removes the obligation to kill him – since he did not yet stand trial, but not that Tosfos forbids it.
There are others who seem to disagree. The Hagaos Ashri (Avodah Zarah 5:5) writes explicity that it is forbidden. This also seems to be the view of the Rosh. In his Teshuvos (17:1), the Rosh indicates that a Bais Din ruling is necessary before any punishment is meted out to another type of person who endangers the lives of others.
One last thought: There does not seem to be much case law in the United States pertaining to citizens and fleeing felons. Perhaps, if it became known that a fleeing felon may be fired upon when he commits an act of terrorism – it may actually reduce the incentive to commit acts of terrorism.
May Hashem continue to protect this nation and all of Klal Yisroel from the horrific acts of terrorism that have arisen of late.
The author can be reached at [email protected]
Thank you for your wonderful limud Torah and drash.
Kill him first. Then ask questions!
The law in NY is clear. Deadly force may be used to prevent the escape of an individual who has committed Murder, Rape, or Arson, even if no longer poses a threat to anyone. Anyone encountering Grafton Thomads during the attack had an obligation to kill him. Anyone encountering him fleeing (not knowing whether his victims would survive), plus knowledge that he would probably do it again, had a right and obligation to put this rabid dog down.
Are you going to consider that he appears to be mentally ill and needs treatment.
And consider that the evidence is entirely forensic and circumstantial.
Face was hidden; he was identified due to superficial characteristics, license plate, victims’ blood on his clothes, bloody matching weapon in the car, motive, etc.
Although the above is rock solid in secular law, what is the view of halacha, which seems to require facial identification by witnesses (and which, BTW, is statistically LESS reliable than forensics, probably the LEAST reliable.)
Heshyemes is correct on the Law.
The license plate man had no knowledge if anyone was murdered but a reasonable belief that there were dead after the attack, and a reasonable belief that the man would commit such an act again. He had a right to shoot to kill.
Unfortunately, New York keeps people from the means of protecting themselves.
Whew!
Just shoot to kill and learn Tosafos tomorrow
kill him dead
i would tend to agree with the person most who told Rabbi Hoffman to stop playing lawyer.
I AM actually a lawyer and can tell you that the citizens have the same rights as the police.
the police have a right to kill a fleeing felon if he is armed and dangerous and therefore so does
the average citizen. The reason is no different from what I am sure that the Torah really hold but
which Rabbi Hoffman has failed to point out: that the man is a RODEF as long as he has his weapon’
in his hand because it can be assumed that he will do anything possible to get away. for some reason
all of Rabbi Hoffman’s halachick analysis did not include the question of whehter Grafton could be
considered a Rodef when he was running away. [EDITOR’S NOTE: THIS WAS, IN FACT, EXACTLY RABBI HOFFMAN’S POINT, WHEN HE EXPLAINED THAT THIS WAS A THIRD TYPE OF RODAIF – AS SEEN FROM THE RAMBAM. PLEASE READ THE ARTICLE THOROUGHLY BEFORE YOU COMMENT] He certainly can be and is. In addition, he attempted to kill someone inside the shul and there was no way of knowing at the time whether he was singling out anyone in particular and would come back at a later time. This is yet an additional reason why he can be adjudged a Rodef which Rabbi Hoffman did not even touch on. [editor’s note: THIS WAS, IN FACT, RABBI HOFFMAN’S POINT]