Rabbi Moshe Spetter
Former Rosh Kollel in Greater Washington
The recent Story of Shai Dromi, the operator of a cattle farm in the Negev, has brought to light a great controversy with regards to the rights of thieves. Dromi, 47, is being accused of manslaughter in an incident that occurred in his ranch near Be’er Sheva last month. He was sleeping in his barn following several months in which his tractor and horse were stolen and several of his dogs were poisoned. Around 3 AM he awoke to the sounds of yet another dog dying of poison – as well as four Bedouin burglars on his property. Fearing for his life, he later explained, he took an old gun of his father’s and shot at the intruders’ legs. One of the Bedouin bled to death, even though Shai said he tried to administer first-aid, and another was seriously wounded.
Shai has been charged in court with manslaughter, possession of an illegal weapon and causing damage. The case brought outcries from all corners of the country – how can a man who was defending is property (and probably life!) be brought to “justice”.
The Rambam (Hilchot Geneivah 9, based on Chazal) explains that haba bamachteret (mentioned in last week’s parsha (Shmot 22, 1-2) is a thief who intends to steal money or property. The Torah allows the owner to kill this type of thief, because the thief is likely to kill the owner. However, “if the sun shone upon him” – in other words, when it is clear that the thief will not harm the owner, because they know each other or others are around to protect the owner or circumstances prevent the thief from hurting the owner (for example, the thief ran away) – the thief must not be touched.
There are essentially two aspects to the laws of haba bamachteret:
1. Immunity from being charged with the thief’s death: This immunity is derived from the fact that the thief “opened himself up to death”, because he certainly realized that the owner was likely to resist and fight back.
2. Permission to harm the thief: This is based on the principle of “when one comes to kill you, kill him first.” When it is likely that the thief will also attack the victim physically, there is room to fear for the victim’s life. As we learn from the law of rodef, one may kill another’s pursuer – if the pursuer intends to kill and if there is no other way to neutralize the threat.
David Hanashkeh (Megadim 7) notes that the first aspect – immunity from being charged with murder – is the simple meaning of the Written Torah, while the second aspect – permission to kill the thief – is our tradition based on the Oral Torah.
Thus, every person has the right to defend him- or herself. In a situation where there is a real threat that cannot be eliminated in any other way, one may even physically attack the assailant in order to neutralize the threat.
