The Attack on the Capitol and Halacha

By Rabbi Yair Hoffman

What happened at the U.S. Capitol in Washington D.C. yesterday was rather mind-boggling.

Protesters walked from a rally for President Trump to the Capitol building. Chanting crowds started to gather on both sides of the building at around 1:10 p.m., grappling with police at the metal barricades. Police tried to use tear gas and pepper spray to keep the protesters at bay.

On the east side, the crowd forced their way through barricades on the Capitol Plaza and entered the building through the main entrance, quickly gaining access to the Great Rotunda.

The doors of the House chamber were locked. A makeshift barricade was erected by Capitol security, who guarded the entrance, guns drawn.

Within an hour, protesters had broken into the west entrance to the Capitol, scaling walls to reach the building itself before smashing windows and forcing doors open.

In the sheer craziness of it all, the vice-president had to be evacuated. Property was destroyed and taken. One of the protesters even sat in Nancy Pelosi’s office with a foot on the table. Elected representatives cowered under benches. Trump followers battled police officers. Four people died.

The Charges

On Wednesday, 83 people were criminally charged by the Metropolitan Police Department and U.S. Capitol Police following a riot and breach of the Capitol building. Seven were charged with guns or ammunitions charges, and three for assaulting a police officer.

Of the 69 people held by the D.C. Police, 26 were arrested at the U.S. Capitol Building. The U.S. Capitol Police also made 13 arrests for unlawful entry of the U.S. Capitol. The owner of a vehicle where pipe bombs were found was also arrested.

The majority of people taken into custody were charged with curfew violation, unlawful entry or a combination of both.

Only 18 of those arrested are from D.C., Maryland or Virginia. Some of the suspects came from as far away as California, Colorado and Wyoming.

Four of those arrested Wednesday were charged with carrying a pistol without a license, possession of a large capacity ammunition feeding device, or possession of unregistered ammunition, according to D.C. Police.

The FBI and local police are continuing to look through the thousands of photos and videos from the riot to identify “individuals in various acts of violence or property destruction.” Our focus, however, is the halachic aspects and repercussions of trespassing.

Defining Trespassing

Here’s the scary moment when protesters initially got into the building from the first floor and made their way outside Senate chamber. pic.twitter.com/CfVIBsgywK

— Igor Bobic (@igorbobic) January 6, 2021

How do we define trespassing? Trespassing is going into somebody else’s land or property without permission of the owner. In pretty much every state in the United States, however, it is also a crime.

Are these U.S. Capitol trespassers in violation of halacha as well as U.S. law? 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?

What About Stealing?

The violation is actually one of stealing. The Talmud (Bava Basra 88a) records a debate between Rabbi Yehuda 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.

Rabbi Yehuda 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).

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 has a market value, and even if the value is less than that of a prutah.

Did President Trump Give Rioters Permission?

But what about if the owner, or the President would have approved of it? Many of the trespassers heard the President tell them to charge the Capitol building. To this, there are two issues. Firstly, the President does not have permission to allow this trespassing. To borrow a question from Watergate: What did the President know and when did he know it?

Abaye versus Rava

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

So, if the case was that the President didn’t know rioters were going to breach the Capitol, but trespassers thought they had his permission, it doesn’t matter. We rule like Abaye. 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 borrowing without permission also apply 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.

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.

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 parks their minivan in a  handicapped spot without permission in order to daven with a minyan, 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.

What happens to someone who trespassed?

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 we watch where we park. And let’s make sure that we don’t lay siege upon any government buildings.

Rabbi Hoffman can be reached at yairhoffman2@gmail.com.