(By Rabbi Yair Hoffman for 5TJT.com)
Most people are aware of the prohibition of Mesirah. They are also aware that when there is a “danger to life” issue involved – i.e. Pikuach Nefesh, it is permitted and perhaps even obligatory. The question is what exactly are the parameters of the interplay between these two concepts?
Covid-19 could be a case in point. In a scenario where the law specifically forbade a school to convene, and the school authorities are actively undermining the authorities and thus risking the lives of both their students’ families and the general public – is a person who is aware of this permitted to inform the authorities? Is that person, indeed, obligated in doing so? Also, in the current crisis, has that scenario been reached?
In theory, a person would be able to report on a Yeshiva that is violating an anti- assembly ordinance on account of the “flesh-eating lung virus” called CoVid-19 when it is clear that it is a sakana, as instructed by a competent Rav. What follows below is why.
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MESIRAH DOES NOT APPLY IN A PUBLIC DANGER
The Rambam writes in Hilchos Chovel uMazik (chapter 8:11) that the prohibition of Mesirah does not apply to someone who endangers the public. A person may turn in someone who endangers the public where he can be subjected to being punished corporeally, imprisoned or fined. This is also the ruling of the Shulchan Aruch (CM 388:12). The Rambam seems to draw a distinction between someone who does so to the public where it is permitted, and someone who does so only to an individual. The commentaries on the Rambam are somewhat at a loss determining the exact source for this distinction.
The Vilna Gaon (CM 425) writes that one may turn in someone who is endangering the public – even if the person does not have the intent of endangering the public. He references the Gemorah in Bava Kamma 117b.
There is also a responsum of the Rivash (#239) where he deals with someone who is wreaking financial havoc who steals from the entire community. The Rivash permits turning him over to the authorities.
Dayan Weiss zt”l (Minchas Yitzchok Vol. VIII #148) was asked whether one is permitted to turn in someone who is speeding excessively in a residential area where there are both elderly people and young children. He ruled that one may certainly do so, from a kal vaChomer argument from the words of the Shulchan Aruch (CM 378:8-9) and the Sma. The rationale Dayan Weiss employs is that the person has the equivalent status of a Rodef in how he is endangering the public.
MUST WARN HIM FIRST
Dayan Weiss adds the caveat that he must first warn him not to do so. He may only turn him in after the violator continues to do so after having received the warning.
Dayan Weiss also discusses two other cases, where a person continues to run through red lights and where a person drives without having passed a qualifying driver’s test.
Dayan Weiss also adds a person who parks in a manner that endangers pedestrians or if he parks on the sidewalk in a manner that pedestrians must dangerously walk on the streets.
There are apparently three source areas in the halacha that would warrant this type of permission: The equivalency to a rodef (CM 425), the status of a Moser (388:10), or one who endangers others through engaging in counterfeiting currency (388:12). Regardless, all three categories require a previous warning and a Bais Din telling him to refrain from doing so. If the person will not appear before a Bais Din, then it would appear that a written warning would be sufficient. It is clear from a responsum of Rav Moshe Shternbuch (Teshuvos v’Hanhagos Vol. II #727) that if there is danger to the informer – then the warning reuirement can be waived.
The responsum Panim Meiros (Volume II #155) and the Chessed L’Avrohom (MK CM #2) both indicate that one may not turn in someone who steals to the authorities unless one has an umdenah d’muchach – clear cut evidence to that effect.
The Tzitz Eliezer (Vol. XIX #52) rules that a doctor may turn in a father who is likely to be beating his child or abusing the child in a sexual manner. In the same responsum he deals with a stranger doing so. The Tzitz Eliezer ruled that it is clear that doing so is permitted.
Rav Elyashiv ruled similarly in a responsum published in Yeshurun 15 p. 670. In a letter to Rav Feivel Cohen dated 2004, Rav Elyashiv zt”l wrote “From the words of the Rashba we observe that regarding a matter that contains within it “tikkun olam,” the sages of Israel in each generation do have the ability to erect fences and to stand in the breach—even in a situation where we do not have the additional legal argument of “the king’s decree.”..
However, this permission to inform the authorities is when it is clear that that the offender was in the wrong—then [we consider that] it does involve the issue of tikkun olam. However, in a situation where there is not even raglayim la’davar (any indication of guilt); rather, it is some imagination—if we permit it, it is not only that there is no tikkun olam, a rectification of the world—rather there is destruction of the world here. It is possible that on account of some bitterness of the student toward the teacher or on account of some psychological illusion we are placing a man into a fate worse than death—where he has no guilt at all on his hands. I see no heter to permit it under such circumstances.”
Rav Shternbuch (Teshuvos v’Hanhagos Vol. II #727) has a responsum regarding whether one is permitted to inform upon a person who runs a house of ill-repute. He rules that he most certainly can. Rav Shternbuch also is very much concerned for Chillul hashem in such a situation and permits informing upon the person even if there is no prohibition of aishes ish is involved.
GETTING BACK TO THE YESHIVOS
Applying the concept of umdena d’muchach, in a situation where everyone in the Yeshiva is secluded from other people living in a dormitory and no one is ill, then it is unclear that there would be an umdenah d’muchach that it endangers people. On the other hand, it is not clear, whether or not there is such a place anymore where the students are exposed to no one else. Certainly in a place such as Brooklyn or the like, it very well could be endangering people. But in the places where no one has been exposed to the virus, there still would be an issue of chillul Hashem mentioned by Rav Shternbuch.
May Hashem bring yeshuos and nechamos to Klal Yisroel and the entire country and cause all of this anguish to be removed swiftly – where we will not have such shailos.
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