Petitioners sued the Government in the Court of Claims for just
compensation under the Fifth Amendment for riot damage to their two
buildings, located in the Atlantic section of the Canal Zone at its
boundary with the Republic of Panama, after they were occupied by
U.S. Army troops during the January, 1964, riots in Panama. On the
evening of January 9, a mob entered the buildings, looting and
wrecking the interiors, and starting a fire in one. Army troops
were moved to the Atlantic section to clear the Zone of rioters and
seal the border. Troops entered three buildings, including
petitioners', ejected the rioters, and were deployed outside the
structures. After considerable assault, sniper fire, and injuries,
the troops were moved inside the buildings after midnight. The
buildings were under siege during the night and the next morning,
and one was set afire. The troops withdrew, and the buildings were
subjected to heavy fire-bomb attack. Other buildings in the area
were damaged or destroyed. The Court of Claims granted the
Government's motion for summary judgment, holding that the
temporary occupancy of the buildings and the damage inflicted by
the rioters during such occupancy did not constitute a taking for
Army use under the Fifth Amendment.
Held: The Fifth Amendment does not require that
petitioners be compensated for damages to their buildings resulting
from misconduct by rioters following occupation of the buildings by
government troops. Pp.
395 U. S.
89-93.
(a) Where, as here, a private party is the particular intended
beneficiary of governmental activity, "fairness and justice" do not
require that losses which may result from that activity "be borne
by the public as a whole," even though the activity may also be
intended to benefit the public. P.
395 U. S.
92.
(b) The physical occupation of the buildings by the troops did
not deprive petitioners of any use of the buildings, as the
buildings were already under siege by rioters, and thus petitioners
could only claim compensation for the increased damage by rioters
resulting from the presence of the troops. P.
395 U. S.
93.
Page 395 U. S. 86
(c) Where the only claim is that governmental action is causally
related to private misconduct which results in private property
damage, the Fifth Amendment does not require compensation unless
the governmental involvement in the deprivation of private property
is determined to be sufficiently direct and substantial. P.
395 U. S.
93.
(d) The temporary, unplanned occupation of petitioners'
buildings in the course of battle does not constitute direct and
substantial enough involvement to warrant compensation under the
Fifth Amendment. P.
395 U. S.
93.
184 Ct.Cl. 427, 396 F.2d 467, affirmed.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
Petitioners brought this suit against the United States in the
Court of Claims [
Footnote 1]
seeking just compensation under the Fifth Amendment for damages
done by rioters to buildings occupied by United States troops
during the riots in Panama in January, 1964. The Court of Claims
held that the actions of the Army did not constitute a "taking"
within the meaning of the Fifth Amendment, and entered summary
judgment for the United States. 184 Ct.Cl. 427, 396 F.2d 467
(1968). We granted certiorari. 393 U.S. 959 (1968). We affirm.
Petitioners' buildings, the YMCA Building and the Masonic
Temple, are situated next to each other on the Atlantic side of the
Canal Zone at its boundary with
Page 395 U. S. 87
the Republic of Panama. Rioting began in this part of the Zone
at 8 p.m. on January 9, 1964. Between 9:15 and 9:30 p.m., an unruly
mob of 1,500 persons marched to the Panama Canal Administration
Building at the center of the Atlantic segment of the Zone, and
there raised a Panamanian flag. Many members of the mob then
proceeded to petitioners' buildings -- and to the adjacent Panama
Canal Company Office and Storage Building. They entered these
buildings, began looting and wrecking the interiors, and started a
fire in the YMCA Building.
At 9:50 p.m., Colonel Sachse, the commander of the 4th
Battalion, 10th Infantry, of the United States Army, was ordered to
move his troops to the Atlantic segment of the Zone with the
mission of clearing the rioters from the Zone and sealing the
border from further encroachment. The troops entered the three
buildings, ejected the rioters, and then were deployed outside of
the buildings. The mob began to assault the soldiers with rocks,
bricks, plate glass, Molotov cocktails, and intermittent sniper
fire. The troops did not return the gunfire, but sought to contain
the mob with tear gas grenades. By midnight, one soldier had been
killed and several had been wounded by bullets; many others had
been injured by flying debris. Shortly after midnight, Colonel
Sachse moved his troops inside the three buildings so that the men
might be better protected from the sniper fire.
The buildings remained under siege throughout the night. On the
morning of January 10, the YMCA Building was the subject of a
concentrated barrage of Molotov cocktails. The building was set
afire, and, in the early afternoon, the troops were forced to
evacuate it and take up positions in the building's parking lot,
which had been sandbagged during the night. Following the
evacuation, the YMCA Building continued to
Page 395 U. S. 88
be a target for Molotov cocktails. The troops also withdrew from
the Masonic Temple on the afternoon of January 10, except that a
small observation post on the top floor of the building was
maintained. The Temple, like the YMCA Building, continued to be
under heavy attack following withdrawal of the troops, the greatest
damage being suffered on January 12 as a result of extensive
fire-bomb activity. The third building under heavy attack in the
area -- the Panama Canal Company Office and Storage Building -- was
totally destroyed on January 11 by a fire started by Molotov
cocktails.
On January 13, the mob dispersed, and all hostile action in the
area ceased. The auditorium-gymnasium in the YMCA Building had been
destroyed, and the rest of the building was badly damaged. The
Masonic Temple suffered considerably less damage because of its
predominantly concrete and brick construction. Other buildings in
the Atlantic segment of the Canal Zone were also damaged or
destroyed. These buildings were all located along the boundary
between the Zone and the Republic of Panama, and none, except the
Office and Storage Building, had been occupied by troops during the
riot.
Petitioners' suit in the Court of Claims sought compensation for
the damage done to their buildings by the rioters after the troops
had entered the buildings. The basic facts were stipulated, and all
parties moved for summary judgment. The court found it
"abundantly clear from the record . . . that the military units
dispatched to the Atlantic side of the Zone by General O'Meara were
not sent there for the purpose or with the intention of
requisitioning or taking [petitioners'] buildings to house
soldiers. Both buildings had previously been looted and damaged by
the rioters. Colonel Sachse's men were ordered to remove the
Panamanians from the buildings in order to prevent further loss or
destruction
Page 395 U. S. 89
and then to seal off the border from further incursions by the
rioters into the Atlantic portion of the Canal Zone."
184 Ct.Cl. at 438, 396 F.2d at 473 -474. Accordingly, the court
held that
"the temporary occupancy of [petitioners'] buildings and the
damage inflicted on them by the rioters during such occupancy did
not constitute a taking of the buildings for use by the Army within
the contemplation of the fifth amendment. . . ."
Id. at 438, 396 F.2d at 473. The Government's motion
for summary judgment was granted, petitioners' motion for summary
judgment was denied, and the case was dismissed.
At the outset, we note that, although petitioners claim
compensation for all the damage which occurred after the troops
retreated into the buildings in the early hours of January 10,
there was no showing that any damage occurred because of the
presence of the troops. To the contrary, the record is clear that
buildings which were not occupied by troops were destroyed by
rioters, and that petitioners' very buildings were under severe
attack before the troops even arrived. Indeed, if the destroyed
buildings have any common characteristic, it is not that they were
occupied by American soldiers but that they were on the border, and
thus readily susceptible to the attacks of the mobs coming from the
Republic of Panama. We do not rest our decision on this basis,
however, for petitioners would not have a claim for compensation
under the Fifth Amendment even if they could show that damage
inflicted by rioters occurred because of the presence of the
troops.
The Just Compensation Clause was
"designed to bar Government from forcing some people alone to
bear public burdens which, in all fairness and justice, should be
borne by the public as a whole."
Armstrong v. United States, 364 U. S.
40,
364 U. S. 49
(1960);
See also United States
v.
Page 395 U. S. 90
Sponenbarger, 308 U. S. 256,
308 U. S. 266
(1939). [
Footnote 2]
Petitioners argue that the troops entered their buildings not for
the purpose of protecting those buildings, but as part of a general
defense of the Zone as a whole. Therefore, petitioners contend,
they alone should not be made to bear the cost of the damage to
their buildings inflicted by the rioters while the troops were
inside. The stipulated record, however, does not support
petitioners' factual premise; rather, it demonstrates that the
troops were acting primarily in defense of petitioners'
buildings.
The military had made no advance plans to use petitioners'
buildings as fortresses in case of a riot. Nor was the deployment
of the troops in the area of petitioners' buildings strategic to a
defense of the Zone as a whole. The simple fact is that the troops
were sent to that area because that is where the rioters were.
[
Footnote 3] And once the
troops arrived in the area, their every action was designed to
protect the buildings under attack. First, they expelled the
rioters from petitioners' buildings and the Office and Storage
Building, putting out the fire started by the rioters in the YMCA
Building. Then they stood guard outside to defend the buildings
from renewed attack by the 2,000 to 3,000 Panamanian rioters who
remained in the area. In this defense of petitioners' property, the
troops suffered considerable losses, and were forced to retreat
into the buildings.
Page 395 U. S. 91
It is clear that the mission of the troops forced inside the
buildings continued to be the protection of those buildings. In a
fact sheet to which the parties have stipulated, the General
Counsel of the United States Department of the Army stated
that:
"[T]he troops had occupied the buildings in the YMCA-Masonic
Temple vicinity
under instructions to protect the
property, [and] their actions, according to all statements
taken, were consistent with instructions. A captain, in his
affidavit, states that he was given a message by the battalion
commander to convey to the officer who had been placed in charge of
the Masonic Temple. The order was, in the captain's words, ' . . .
that, if the rioters attempted to enter the building with the
intent to do damage to persons or property, that appropriate action
. . . could be used. . . .' According to the captain, the order
went on to state,"
". . . Those people on the 1st floor could assume that rioters
forcibly entering the building had the intent to do damage to
either property or persons."
"The officer in charge received that order, and it was passed
along to the men. One sergeant's affidavit names the officer and
recounts receiving the order from him. In the sergeant's own words,
'
The building would be defended at all costs.'"
"Other statements by individual soldiers describe actions taken
to minimize damage which the rioters were attempting to cause.
Several soldiers describe throwing and firing rifle-launched tear
gas grenades at rioters who were hurling Molotov cocktails at the
buildings. Another describes using similar agents 'to keep the
crowd from entering the YMCA,' while still others describe action
by themselves or other soldiers in physically routing Panamanians
from the YMCA after they had come in through the windows."
(Italics supplied.)
Page 395 U. S. 92
Colonel Sachse, the commanding officer in the Atlantic riot
area, testified to the same effect:
"The YMCA building was on fire from Molotov cocktails being
thrown from the Republic of Panama side into the front of it. We
were unable to protect it due to the fact that it is set on the
border between the Canal Zone and the Republic of Panama. Therefore
we practically lost most of this building by Molotov
cocktails."
Thus, there can be no doubt that the United States Army troops
were attempting to defend petitioners' buildings. Of course, any
protection of private property also serves a broader public
purpose. But where, as here, the private party is the particular
intended beneficiary of the governmental activity, "fairness and
justice" do not require that losses which may result from that
activity "be borne by the public as a whole," even though the
activity may also be intended incidentally to benefit the public.
See Armstrong v. United States, supra, at
364 U. S. 49;
United States v. Sponenbarger, supra, at
308 U. S. 266.
Were it otherwise, governmental bodies would be liable under the
Just Compensation Clause to property owners every time policemen
break down the doors of buildings to foil burglars thought to be
inside.
Petitioners' claim must fail for yet another reason. On oral
argument, petitioners conceded that they would have had no claim
had the troops remained outside the buildings even if such presence
would have incited the rioters to do greater damage to the
buildings. We agree. But we do not see that petitioners' legal
position is improved by the fact that the troops actually did
occupy the buildings. Ordinarily, of course, governmental
occupation of private property deprives the private owner of his
use of the property, and it is this deprivation for which the
Constitution requires compensation.
See, e.g., United States v.
General Motors, 323 U. S. 373,
323 U. S.
378
Page 395 U. S. 93
(1945). There are, however, unusual circumstances in which
governmental occupation does not deprive the private owner of any
use of his property. For example, the entry by firemen upon burning
premises cannot be said to deprive the private owners of any use of
the premises. In the instant case, the physical occupation by the
troops did not deprive petitioners of any use of their buildings.
At the time the troops entered, the riot was already well under
way, and petitioners' buildings were already under heavy attack.
Throughout the period of occupation, the buildings could not have
been used by petitioners in any way. Thus, petitioners could only
claim compensation for the increased damage by rioters resulting
from the presence of the troops. But such a claim would not seem to
depend on whether the troops were positioned in the buildings.
Troops standing just outside a building could as well cause
increased damage by rioters to that building as troops positioned
inside. In either case -- and in any case where government action
is causally related to private misconduct which leads to property
damage -- a determination must be made whether the government
involvement in the deprivation of private property is sufficiently
direct and substantial to require compensation under the Fifth
Amendment. The Constitution does not require compensation every
time violence aimed against government officers damages private
property. Certainly, the Just Compensation Clause could not
successfully be invoked in a situation where a rock hurled at a
policeman walking his beat happens to damage private property.
Similarly, in the instant case, we conclude that the temporary,
unplanned occupation of petitioners' buildings in the course of
battle does not constitute direct and substantial enough government
involvement to warrant compensation under the Fifth Amendment. We
have no occasion to decide whether
Page 395 U. S. 94
compensation might be required where the Government in some
fashion not present here makes private property a particular target
for destruction by private parties.
Affirmed.
[
Footnote 1]
Jurisdiction in the Court of Claims was based upon 28 U.S.C. ยง
1491.
[
Footnote 2]
For a general discussion of the purposes of the Just
Compensation Clause,
see Michelman, Property, Utility, and
Fairness: Comments on the Ethical Foundations of "Just
Compensation" Law, 80 Harv.L.Rev. 1165 (1967); Sax, Takings and the
Police Power, 74 Yale L.J. 36 (1964).
[
Footnote 3]
It is significant that, at the outset of the rioting, Colonel
Sachse sent one of his companies -- "B" Company -- to an area
several blocks away from petitioners' buildings. It was only
because "[t]he number of rioters in the
B' Company area was
practically none" that "B" Company was subsequently sent to the
area near petitioners' buildings.
MR. JUSTICE STEWART, concurring.
If United States military forces should use a building for their
own purposes -- as a defense bastion or command post, for example,
-- it seems to me this would be a Fifth Amendment taking, even
though the owner himself were not actually deprived of any personal
use of the building. Since I do not understand the Court to hold
otherwise, I join its judgment and opinion.
MR. JUSTICE HARLAN, concurring in the result.
At the time the military retreated into the YMCA and the Masonic
Temple, three alternative courses of action were open to the army
commander. First, the troops could have continued their prior
strategy and stood their ground in front of the buildings without
returning the rioters' hostile sniper fire; second, the troops
could have stood their ground and attempted to repel the mob by the
use of deadly force; third, the troops could have retreated from
the entire area, leaving the mob temporarily in control. The
petitioners argue that, if the troops had adopted either of the
first two of these alternative strategies, their buildings would
not have suffered the damage which resulted from the military's
occupation.
But what if the military had adopted the third strategy open to
it? If the army had completely abandoned the area to the rioters,
and regrouped for a later counterattack, there can be little doubt
on this record that the rioters would have subjected the buildings
to greater damage than that which was in fact suffered. I believe
this fact to be decisive. For it appears to me that, in riot
control situations, the Just Compensation Clause
Page 395 U. S. 95
may only be properly invoked when the military had reason to
believe that its action placed the property in question in greater
peril than if no form of protection had been provided at all.
I
I start from the premise that, generally speaking, the
Government's complete failure to provide police protection to a
particular property owner on a single occasion does not amount to a
"taking" within the meaning of the Fifth Amendment. Every man who
is robbed on the street cannot demand compensation from the
Government on the ground that the Fifth Amendment requires fully
effective police protection at all times. The petitioners do not,
of course, argue otherwise. Yet surely the Government may not be
required to guarantee fully effective protection during serious
civil disturbances when it is apparent that the police and the
military are unable to defend all the property which is threatened
by the mob. If the owners of
unprotected property remain
uncompensated, however, there seems little justice in compensating
petitioners, who merely contend that the military occupation of
their buildings provided them with
inadequate
protection.
Petitioners' claim that they may recover on a bare showing that
they were afforded "inadequate" protection has an additional defect
which should be noted. If courts were required to consider whether
the military or police protection afforded a particular property
owner was "adequate," they would be required to make judgments
which are best left to officials directly responsible to the
electorate. In the present case, for example, petitioners could
argue that it was possible for the troops to maintain their
position in front of the buildings if they had been willing to kill
a large number of rioters. In rebuttal, the Government could
persuasively argue that the indiscriminate use of deadly force
would have enraged
Page 395 U. S. 96
the mob still further and would have increased the likelihood of
future disturbances. Which strategy is a court to accept. Clearly,
it is far sounder to defer to the other duly constituted branches
of government in this regard.
It is, then, both unfair and unwise to favor those who have
obtained some form of police protection over those who have
received none at all. It is only if the military or other
protective action foreseeably increased the risk of damage that
compensation should be required. Since, in the present case, the
military reasonably believed that petitioners' property was better
protected if the troops retreated into the buildings, rather than
from the entire area, the property owners have no claim to
compensation on the ground that the protection afforded to them was
"inadequate."
I must emphasize, however, that the test I have advanced should
be applied only to government actions taken in an effort to control
a riot. The Army could not, for example, appropriate the YMCA today
and claim that no payment was due because the building would have
been completely demolished if the military had not intervened
during the riot. Once tranquility has been restored, property
owners may legitimately expect that the Government will not deprive
them of the property saved from the mob. But while the rioters are
surging through the streets out of control, everyone must recognize
that the Government cannot protect all property all of the time. I
think it appropriate to say, however, that our decision today does
not in any way suggest that the victims of civil disturbances are
undeserving of relief. But it is for the Congress, not this Court,
to decide the extent to which those injured in the riot should be
compensated, regardless of the extent to which the police or
military attempted to protect the particular property which each
individual owns.
Page 395 U. S. 97
II
While I agree with the Court that no compensation is
constitutionally available under the facts of this case, I have
thought it appropriate to state my own views on this matter, since
the precise meaning of the rules the majority announces remains
obscure at certain critical points. Moreover, in deciding this
particular case, we should spare no effort to search for principles
that seem best calculated to fit others that may arise before
American democracy once again regains its equilibrium.
The Court sets out two tests to govern the application of the
Just Compensation Clause in riot situations. It first denies
petitioners recovery on the ground that each was the "particular
intended beneficiary" of the Government's military operations.
Ante at
395 U. S. 92. I
do not disagree with this formula if it means that the Fifth
Amendment does not apply whenever the policing power reasonably
believes that its actions will not increase the risk of riot damage
beyond that borne by the owners of unprotected buildings. But the
language the Court has chosen leaves a good deal of ambiguity as to
its scope. If, for example, the military deliberately destroyed a
building so as to prevent rioters from looting its contents and
burning it to the ground, it would be difficult indeed to call the
building's owner the "particular intended beneficiary" of the
Government's action. Nevertheless, if the military reasonably
believed that the rioters would have burned the building anyway,
recovery should be denied for the same reasons it is properly
denied in the case before us.
Cf. United States v. Caltex,
Inc., 344 U. S. 149
(1952).
Moreover, the Court's formula might be taken to indicate that,
if the military's subjective intention was to protect the building,
the courts need not consider whether this subjective belief was a
reasonable one.
Page 395 U. S. 98
While the widest leeway must, of course, be given to good faith
military judgment, I am not prepared to subscribe to judicial
abnegation to this extent. If a court concludes, upon convincing
evidence, that the military had good reason to know that its
actions would significantly increase the risk of riot damage to a
particular property, compensation should be awarded regardless of
governmental good faith.
While I accept the Court's "intended beneficiary" test with
these caveats, I cannot subscribe to the second ground the majority
advances to deny recovery in the present case. The majority
analogizes this case to one in which the military simply posted a
guard in front of petitioners' properties. It is said that, if the
rioters had damaged the buildings as a part of their attack on the
troops standing in front of them, the property damage caused would
be too "indirect" a consequence of the military's action to warrant
awarding Fifth Amendment compensation. It follows, says the Court,
that, even if the military's occupation of the buildings increased
the risk of harm far beyond any alternative military strategy, the
Army's action is nevertheless too "indirect" a cause of the
resulting damage.
This argument, however, ignores a salient difference between the
case the Court hypothesizes and the one which we confront. If the
troops had remained on the street, they would not have obtained any
special benefit from the use of petitioners' buildings. In
contrast, the military did in this instance receive a benefit not
enjoyed by members of the general public when the troops were
ordered to occupy the YMCA and the Masonic Temple. As the Court's
statement of the facts makes clear, the troops retreated into the
buildings to protect themselves from sniper fire. Ordinarily, the
Government pays for private property used to shelter its
officials,
Page 395 U. S. 99
and I would see no reason to make an exception here if the
military had reason to know that the buildings would have been
exposed to a lesser risk of harm if they had been left entirely
unprotected.
On the premises set forth in this opinion, I concur in the
judgment of the Court.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins,
dissenting.
The Court says that:
"Shortly after midnight, Colonel Sachse moved his troops inside
the three buildings [which included the two buildings for which
compensation is here sought] so that the men might be better
protected from the sniper fire."
Ante at
395 U. S. 87.
The Army selected those two buildings to protect itself while
carrying out its mission of safeguarding the entire zone from the
rioters. Thus, the Army made the two buildings the particular
targets of the rioters, and the buildings suffered heavy damage.
The Army's action was taken not to save the buildings, but to use
them as a shelter and fortress from which, as the Court of Claims
found, "to seal off the border from further incursions by the
rioters into the Atlantic portion of the Canal Zone." 184 Ct.Cl.
427, 438, 396 F.2d 467, 474 (1968). At that time, I think it can
hardly be said that these private buildings were taken for the good
of the owners. Instead, the taking by the Army was for the benefit
of the public generally. I still feel that
"the guiding principle should be this: whenever the Government
determines that one person's property -- whatever it may be -- is
essential to the war effort and appropriates it for the common
good, the public purse, rather than the individual, should bear the
loss."
United States v. Caltex, Inc., 344 U.
S. 149,
344 U. S. 156
(1952) (dissenting opinion of MR. JUSTICE DOUGLAS).