The Roadmap
In 1995, Kraus Teuber published Settlers of Catan (Catan) in his home country of Germany; since then the game has sold over 18 million units across the globe. At the time of writing, the success of Catan has led to 4 expansions, numerous thematic editions, and several variants. Today's thought exercise discusses a mechanic from the core game, though. Below I review the “Robber” and how legally accurate the term is. If you cannot get enough of my prose, feel free to read the piece in its entirety. If you are already familiar with Catan, consider skipping to the legal analysis. If you are comfortable with the game and law, you can also jump to the hypothetical.
The Robber Mechanic
For the uninitiated, Catan is a game where players vie to accrue a predetermined amount of victory points. They do so by developing their presence on the eponymous island of Catan, which in the base game is made up of 19 hexagonal tiles, 18 of which depict one of the five resources inexplicably native to the isle: wood, brick, wheat, sheep, and ore. Each resource is represented as a card, and collectively these cards form a player’s hand. The 19th tile is a desert that generates no resources and initially houses this piece's subject, the Robber. During setup, players arrange the tiles in a grid and assign each bountiful space a marker ranging from 2 to 6 or 8 to 12. Because the desert is barren, it does not receive a marker.
A player starts their turn by rolling a pair of di. Any tile assigned a marker that matches the results potentially generates its iconic resource. However, a player may only collect said resource if they have built a settlement or city on one of the hexagonal tile’s corners. Thus any player who has built a city/settlement on the matching tile may collect resources, not just the active player. If, over the course of the game the Robber happens to be squatting on a tile whose marker matches the dice, the ne’er-do-well blocks production and the tile generates nothing.
The statistically most likely result for a pair of di is 7. However, because there is no 7 marker to assign to a tile, no resources are generated for that number. Instead, the following 3 effects occur:
- Everyone who has more than 7 resource cards must discard half of their hand, rounded down. The discarded resources are returned to the supply.
- The active player must move the Robber to a new tile.
- The active player chooses one player with a settlement or city on the newly-affected tile, if there is one, and takes one of that player’s resource cards at random.
After rolling the dice, the active player (and only the active player) can trade resources with whomever agrees to their terms. The active player can also spend the fruits of their production and negotiations in specified recipes to further their empire. For example, he or she may upgrade their economic engine by founding additional settlements and cities within their domain. They might expand their existing footprint (or curtail their neighbor’s) by pushing out into the wilderness with roads. Or they could buy development cards that can grant special powers or be worth victory points. Development cards most likely contain a knight, each of which can be played once to dislodge the Robber from its current space and place the pawn on another tile. That can be useful if you are about to roll and the Robber would preclude production on a tile from which you are hoping to collect.
I have played Catan since college and never questioned why this mechanic was labeled the Robber. After all, directing the pawn to a plot developed by another player meant I could take one of their resources. There was the additional schadenfreude of sometimes choosing a competitor who had just discarded half their resources, meaning they likely valued whatever cards remained in their hand even if I did not. But does Catan’s Robber and assorted villainy live up its reputation under the law?
The Legal Construction
Wrongfully acquiring the property or services of another person is colloquially referred to as “theft,” but that term is somewhat imprecise and encompasses a range of illicit acts. Stealing, extortion, and embezzlement all connote improper gains, but their means differ significantly. Robbery is likewise a form of theft that is defined by how the crime is accomplished.
One of the simplest forms of stealing is when one person feloniously or fraudulently takes and carries away the personal property of another; in criminal law this is known as “larceny.” 50 Am. Jur. 2d Larceny § 1 (2019). While a statute or jurisdiction’s caselaw may alter the exact elements, the common law definition of robbery refers to the felonious taking of money, goods, or personal property of another person, in their presence, against their will, and by: violence or force, intimidation, threats, or by putting the victim in fear. 67 Am. Jur. 2d Robbery § 1 (2019). “More succinctly, robbery is larceny from the person, accompanied by violence or putting in fear.” Id. As an example, for nearly 250 years my home state has statutorily defined robbery as the felonious taking of personal property in the possession of another, from their person or immediate presence, and against their will, by force or fear. Cal. Penal Code § 211 (Deering 2019, enacted 1872).
While the taking of the property is perhaps the most obvious actus reus, or physical element of the crime, a robbery is not necessarily complete at that point. In California, “taking” has two somewhat nonobvious components: “gaining possession” and “carrying away.” People v. Cooper, 811 P.2d 742, 748 (Cal. 1991). “The nature of the crime is such that a robber's escape with his loot is just as important to the execution of the crime as obtaining possession of the loot in the first place. Thus, the crime of robbery is not complete until the robber has won his way to a place of temporary safety.” People v. Carroll, 463 P.2d 400 (Cal. 1970). In Carroll, the defendant laid in wait in the restroom of a drinking establishment. When the victim entered, the defendant brandished a firearm and demanded the victim’s wallet. The victim handed his billfold over, but when the defendant realized it was empty, he threw the wallet in the wash basin. The victim, in a surprising display of moxie, then slammed a stall door against the defendant’s head and ran out of the privy. The defendant chased and fired several rounds, one of which grazed the victim. The victim then ducked behind the bar and when the defendant followed, the victim threw a crate of empty bottles at him. Incensed, the defendant shot the victim in the abdomen, and then took money from the establishment’s cash register, thereby robbing a second victim (the venue’s owner). The court affirmed the robbery conviction against the wounded victim based not on the defendant's threat with firearm in the restroom, but the more egregious shooting of the victim after he hid. Even though the defendant had already taken and discarded the victim’s wallet, the court found the robbery was ongoing until the defendant reached a temporary place of safety; before arriving at that haven, the defendant shot the victim and thus the violence was part of the robbery.1
Though the carrying away of property, or asportation, is a California requirement, there is no fixed distance a defendant must move the property in order to effect a robbery. “The crime of robbery is complete when the robber unlawfully and by means of force or fear gains possession of the movable property of another in the presence of its lawful custodian and reduces it to his manual possession.” People v. Clark, 160 P.2d 553, 554 (Cal. Dist. Ct. App. 1945). In Clark, the court affirmed the defendant’s robbery conviction based on testimony that he knocked the victim to the floor, held the victim at gunpoint, and ran off with $4,200; the court opined it was immaterial whether the defendant moved the “money one yard or one mile from the presence of his victim.” Id.
The Hypothetical
Aesop, Beatrix, and Charles are midway through a game of Catan. It is Aesop’s turn, and he rolls a 7. Beatrix must discard from 8 cards to 4 while neither Aesop nor Charles had more than 7 resources in their hands. Aesop then moves the Robber to an ore tile, upon which both Beatrix and Charles have built settlements. Tempted to go for one of Beatrix’s remaining cards, Aesop instead takes a resource from Charles since he is currently in the lead. Based on the above law, has Aesop committed any robberies?
To recap, the common law definition of robbery is the “felonious taking of money, goods, or personal property from the person of another, in their presence, against their will, and by: violence or force, intimidation, threats, or by putting the victim in fear.” I will make one conceit in the below analysis because robbery, by definition, is a crime and demonstrably against society’s rules. Yet the consequences of rolling a 7 are not illegal in Catan, rather they are mandated by the game and indeed the most likely result. So I am waiving the “felonious” intent requirement from the below discussion, or there would be no chance that the Robber was aptly named.
Discarding
While irksome, Beatrix being forced to discard cards due to Aesop rolling a 7 would probably not constitute a robbery. First, it is difficult to prove Aesop possessed the necessary mens rea, or intent or knowledge that he is committing a crime, when he tossed the bones. The dice roll is presumptively random, so even if Aesop was hoping to roll a 7 for strategic reasons, such an outcome would be coincidental to that desire and not a result of it.2
Second, when players discard half their hands the cards go not to the active player, but back to the supply. Thus Aesop did not gain possession of the discarded cards, and there was no “taking.”
Taking A Card, Any Card
Perhaps the nearest match to a theft occurred when Aesop took a resource card from Charles. The card represents the property of Charles, which he held either in his hand or within his constructive possession in front of him. One could argue selecting Charles and one of his cards was against Charles’s will, as a player is rarely eager to lose one of their resources. To demonstrate his resistance, Charles might make emotional pleas or logical arguments in hopes of convincing Aesop that Beatrix is the better target. Ultimately, though, Aesop chose Charles, and under the rules Charles must relinquish the card. Aesop would then effect control over the property by moving it to his hand or play area; since there is no minimum distance Aesop must move the card, even this slight relocation would likely fulfill the asportation requirement in California. Yet Aesop accomplished the act without force or threats, without which the taking could not be a robbery. Because Aesop will likely remain in Charles's presence until the game concludes, he has not yet reached a place of temporary safety. The taking is therefore still ongoing, and it is possible that a subsequent physical altercation between Aesop and Charles could convert the event to a robbery.
Blocking Production
Like the mandatory discarding when a player has over 7 cards, the blocking of future production does not constitute a robbery since there is no taking. This interference with the ability of other players’ settlements and cities to develop resources could constitute a private nuisance, though. A nuisance includes "anything that annoys or disturbs the free use of one's property, or which renders its ordinary use or physical occupation uncomfortable, and this extends to everything that endangers life or health, gives offense to the senses, violates the laws of decency, or obstructs the reasonable and comfortable use of property.” 58 Am. Jur. 2d Nuisances § 1 (2019). For, example, in Arcade Water District v. United States, 940 F.2d 1265 (9th Cir. 1991), the U.S. Government was held liable after the residue from a U.S. Air Force base’s laundromat seeped into a nearby Sacramento County well. This pollution rendered the water unfit for the county and its customers. As a tort, though, the wrong only occurs when the interference is both substantial and unreasonable, 58 AmJur 2d Nuisances § 56 (2019), and given the Robber's conduct is prescribed by the game rules it would be difficult to label the act “unreasonable.”
Conclusion
So none of the Robber’s actions amount to a robbery, which is not surprising given the broad meaning "robbery" has taken on in daily conversations. Idioms like "highway robbery" typically refer to exorbitant business prices, while "robbing Peter to pay Paul" connotes incurring a debt in one area in order to repay an obligation in another. Yet neither is associated with force or fear.
Despite the lack of legal precedent for the Robber moniker, there may be a historical one. Hillay Zmora briefly discussed the Raubritter ("robber-knight" in German) in his book State and Nobility in Early Modern Germany: The Knightly Feud in Franconia, 1440-1567. 3 (1997). Those “robber-knights of Thuringia” earned their living by plundering “cities of their goods.” Id. Zmora quoted Werner Rösener’s description from Zur Problematik des spätmittelalterlichen Raubrittertums to describe robber-knights as those “operating in the grey area between a just feud and flagrant robbery”; Zmora opined this was an apt “description of the reality behind the feuds of German nobles.” Id. at 10. Although the official German translation of the rules uses the term Räuber (robber), it is not hard to envision Catan's ruthless pawn acting as a Raubritter. The robber-knight serves as a proxy between the feuding nobles of Catan, its influence chased away by the players' knights.
1. The requirement that the defendant carry away, or asport, the property is not a universal one. In People v. Rodriguez, the trial court considered a defendant’s previous convictions in Texas for a 1976 robbery, 1974 burglary, and 1992 burglary when determining the punishment for yet another burglary in California. 18 Cal. Rptr. 3d 550 (Cal. Ct. App. 2004). These prior convictions could heighten the sentence for the instant conviction under California’s “Three Strikes” policy. Id. at 130. A California court could consider another state's conviction for a serious or dangerous felony as a strike only if that conviction contained all the elements of a qualifying felony in California. The appellate court found Texas’s definition of robbery did not require asportation, while California did. Thus, the trial court had erred by considering the Texas robbery conviction as a strike and heightening the burglary sentence.
2. While a 7 is the most likely dice result, it only occurs in 6 of 36 possible combinations (simplified to 1/6, or approximately 16.67%). Moreover, a 7 also forces every player to discard if they have more than 7 resource cards, which imperils the active player, as well. These same factors (and odds) have been sufficient to find a defendant guilty in homicide cases. In People v. Hansen, 68 Cal. Rptr. 2d 897 (Cal. Ct. App. 1997), the defendant was found guilty through criminal negligence when he provided a partially loaded revolver to a 14 year-old neighbor and suggested they play Russian roulette. Similarly, in Commonwealth v. Malone, 47 A.2d 445 (Pa. 1946), the 17 year-old defendant was found guilty of murder in the second degree when he recommended playing “Russian poker” to his 14 year-old friend. After the friend said he did not care if they played, the defendant put a revolver loaded with one round to the decedent’s head and pulled the trigger three times; the third pull discharged the round. In Malone, the appellate court affirmed the conviction based on the defendant’s “depraved heart,” or reckless and wanton disregard for the rights of others. Id. at 447. In both cases, the defendants argued they did not have the necessary specific intent to kill because Russian roulette is a game of chance; in both cases the appellate court disagreed and determined the defendants were guilty of homicide even if that was not their specific goal.