U.S. Supreme Court YMCA v. UNITED STATES, 395 U.S. 85 (1969) 395 U.S. 85

[Page 395 U.S. 85, 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. 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. 93.

184 Ct. Cl. 427, 396 F.2d 467, affirmed.

Ronald A. Jacks argued the cause for petitioners. With him on the brief were Harding A. Orren and Sherman L. Cohn.

Peter L. Strauss argued the cause for the United States. With him on the brief were Solicitor General Griswold, Acting Assistant Attorney General Taylor, Roger P. Marquis, and S. Billingsley Hill.

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.

[Page 395 U.S. 85, 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. 85, 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.

[Page 395 U.S. 85, 90]

Sponenbarger, 308 U.S. 256, 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. 85, 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.'

[Page 395 U.S. 85, 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.

FootnotesFootnote 1 Jurisdiction in the Court of Claims was based upon 28 U.S.C. 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.

[Page 395 U.S. 85, 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 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, 156 (1952) (dissenting opinion of MR. JUSTICE DOUGLAS).

[Page 395 U.S. 85, 100]