The Attack on the Capitol and Halacha

By Rabbi Yair Hoffman for 5tjt.com

What happened at the U.S. Capitol in Washington DC yesterday was both mind-boggling and horrifying.

Protesters swarmed the building as protests in Washington, DC as the U.S. Congress met to formally ratify Joe Biden as the winner of the 2020 Presidential election on Jan. 6, 2021.

In the sheer craziness of it all, the vice-president had to be evacuated and property was destroyed and taken. One of the protestors even sat in Nancy Pelosi’s office and seat and took some papers.  Government officials cowered under benches.  Trump followers battled police officers.  Four people died, r”l.

THE CHARGES

According to U.S. Attorney for the Eastern District of Michigan Matthew Schneider, depending on what investigators find and individual circumstances, charges could range from everything from low-level curfew charges, to trespassing, to the misdemeanor of destruction of government property less than $1,000, depending on the cost of the windows and anything else, he said.  There could also be a felony charge of destruction of government property over $1,000, depending on what was damaged, which is punishable by up to 10 years in prison.

Our focus, however, is the halachic aspects and repercussions of trespassing.  We must keep in mind the principle of Ki Haim Chayeinu – that we should always use every event and opportunity to learn Torah and to always look at things from a Torah perspective.

DEFINING TRESPASSING

How do we define trespassing? Trespassing could be one of two things from a civil law perspective. It could either be the criminal act of going into somebody else’s land or property without permission of the owner or it could just be a civil law tort that may be a valid cause of action for a lawsuit to seek either judicial relief and or damages. In England, it is not prosecutable but one may sue for damages. In pretty much every state in the United States, however, it is also a crime.

IS IT A VIOLATION OF HALACHA?

Are these U.S. Capitol trespassers in violation of halacha as well? They were not allowed to enter it and just pushed their way through – even climbing over walls and fences.  Is this also a violation of halacha? If so, what exactly is the violation? Is it a crime or just a tort?

THE STEALING DEBATE

The violation is actually one of stealing. The Talmud (Bava Basra 88a) records a debate between Rabbi Yehudah and the Chachomim (sages) as to whether borrowing an item without permission renders a person into a gazlan – a thief, or whether he simply has the status of a borrower.

WE RULE THAT BORROWING WITHOUT PERMISSION IS STEALING

Rabbi Yehudah maintains that he does not have the halachic status of a thief, while the sages maintain that he does. The Rif and the Rambam both rule in accordance with the sages that he is considered a thief. Indeed, this is also the ruling of the Shulchan Aruch in four different places (CM 292:1; 308:7; 359:5; 363:5).

CHAZON ISH – EVEN NO MARKET VALUE

Does this apply in all cases? Here there is no value per se in setting foot on the Capitol property, other than the selfies. While this may be the case, the Chazon Ish (BK 20:5) writes that the prohibition of sho’el shelo midaas, borrowing without permission – applies even when the item is not something that generally has a market value, and even if the value is less than that of a prutah.

WHAT DID THE PRESIDENT KNOW AND WHEN DID HE KNOW IT

But what about if the owner, or the President would have approved of it? Many of the tresspassers were thinking that the President is aware of “what I was doing here” and he certainly would not mind. This last point is not so clear cut.

To this, there are two issues.  Firstly, the President does not have permission to allow this trespassing.  There was no executive order signed.

Secondly, it is unclear that the president had foreknowledge that illegal trespassing was to occur.  And if he didn’t. then the halachic issues have to do with the concept of Yayush shelo Midaas (that’s right, the Gemorah that our sixth grade boys always do).  To borrow a question from Watergate:  What did the President know and when did he know it?

ABAYE VERSUS RAVAH

Let’s go back to that famous debate between Abaye and Ravah. If a person would have given up hope on a lost item, but didn’t know yet that he lost it to have given up hope, did he give up hope? Abayeh says that he didn’t. Ravah says that he did. This is one of only six incidences in which we rule like Abayeh against Ravah.

So, in our case, where the President didn’t know about it yet, but (in the trespasser’s mind) would most certainly have given permission, it doesn’t matter. We rule like Abayeh. Indeed, this is the position of the Tosfos in BM 22a “Mar Zutrah” as cited in the Sefer Mamon Yisroel. Even though the Shach (CM 358:1) writes that, if it were possible to say, he disagrees with the Tosfos, the overwhelming conclusion of halachic authorities is to remain with the ruling of the Tosfos. This is the conclusion of the Ktzos HaChoshain (358:1 and 262:1) as well as the Kitzur Shulchan Aruch (182:13).

DOES IT APPLY TO LAND?

Ah, but how do we know that borrowing without permission also applies to being on someone’s land? Maybe in order to borrow, you have to physically take it. Here, you are just taking up airspace on someone’s land, in our case – the Capitol building.

INDICATION FROM THE RASHBAM THAT IT APPLIES TO LAND

The Rashbam in Bava Basra 57b discusses a case of two partners in a property. There, writes the Rashbam, we are lenient and assume that one gives the other permission to place his animals on the land without explicit permission. In such a case, he would not be considered a shoel shelo midaas since they, in general, are partners, and would let the other do what they want with their property. The Rashbam, therefore, clearly states that when not dealing with two partners of a property, trespassing would be subsumed under the concept of shoel shelo midaas.

PSAK FROM RAV CHAIM KANIEVSKY

Backing up this idea is a ruling from Rav Chaim Kanievsky Shlita as related by Rabbi Pesach Krohn.  Rabbi Shimon Grama had posed the question.  If someone goes to minyan and parks in a handicapped spot it is considered a Mitzvah HaBaah b’Aveirah and one gets no credit for davening there.  This backs up the idea that trespassing on land is theft.  Rav Chaim added that it is NOT MESIRAH to call the police on someone who parked in such a spot.  Previously, this author reported that it was Rav Elyashiv’s view that it is NOT MESIRAH to tow away a car blocking your driveway.

IF ONE DID TRESPASS

What happens if someone did or does trespass? If you are standing, it is best to sit down in order to prepare for what you are about to read. He is considered a gazlan – a thief. What are the ramifications? According to the Shulchan Aruch (CM 34:7), he cannot be a witness at a Jewish wedding unless he does Teshuvah and makes restitution where applicable.

There is one caveat, however.  If he is unaware that it is forbidden – he does not lose his status as kosher witness, according to the Vilna Gaon (ibid).  Most authorities do rule like the Vilna Gaon.

The conclusion from all this is that trespassing is serious business. Let’s make sure that we watch where we park.  And let’s all make sure that we don’t lay siege upon any government buildings.

The author can be reached at [email protected]

P.S. If anyone is interested in assisting a single mother make a wedding for her daughter – please contact the author at the above email address.