News reports heroicize resistance to robbery, but storeowner's murder counsels common law wisdom

Mahaseth and his wife
(posted to Twitter by Sam Smink, WHDH 7 News)

A man was charged in early November for fatally shooting a Fall River, Mass., convenience store owner.

The murder of Stop N Save owner Lal Kishor Mahaseth in October shocked the Fall River community, near where I live in eastern Rhode Island.  But the circumstances that gave rise to it are all too familiar in Massachusetts south coast cities.

To help my Torts I class wrestle with the interrelated defenses of self, other, and property, I sometimes show a video of a local convenience store owner who fought back against would-be robbers.  When the viewer knows that no one was seriously hurt in the end, the video can be funny, while stirring serious conversation on matters such as tort doctrine, "stand your ground" laws, and the expectations of the social contract in the unique American culture of guns and personal responsibility.

Sadly and oddly, there are many videos from which to choose for this exercise, even limiting the search to nearby New Bedford, Mass.  My favorite video dates to 2012, when owner-operator Nicholas Dawoud turned the tables on assailants at the St. Elias Mini Market.  This story from WJAR has it all: robbery turned to personal threat; the frustrated defender, informed by past offenses, erupted; and other local customers joined the fray.

The tragedy in Fall River layers the problem with an added complexity.  Do news stories that glamorize defending locals incentivize a wrong choice?  Surveillance video in the Fall River case reportedly shows that 54-year-old Mahaseth resisted his armed assailants, at one point throwing a chair at them.  Does citizen frustration with failed policing in stressed economic times justify a different response to the problems of privileging defense?

Historic common law norms favor life over property in all circumstances.  The result is a familiar law school hypothetical with which students often struggle: the rightful owner of property has no privilege to commit personal attack to defend against threatened violence to dispossess, as long as the threat is merely contingent (albeit often unprovably so in real life) on the owner's refusal to surrender.  The theory is that no one will be hurt, and the wronged property owner can resort to assistance by proper authorities.

However, owing to the powerful American ethos of property and personal responsibility, the historic common law result is as likely to be excepted as applied, in practice.  The glamorization of physical defenses of property such as Dawoud's reinforces the incompatibility of the common law logic with many Americans' thinking.

Mahaseth, who was born in Nepal and earned a degree there in education, is survived by his wife and three children, The Herald News reported in October.  Prosecutors charged 37-year-old Nelson F. Coelho with murder, attempted armed and masked robbery, and carrying an illegal firearm, Mass Live reported in November.

[I acknowledge a kind note of Prof. Volokh, who aptly observes that non-deadly force in defense of property is permitted by common law.  I admittedly conflated defense by force at all, as I suggest, or fear, that the nuance is lost on the aggressor who responds violently, and potentially fatally.]