YMCA v. UNITED STATES
Legal provision: Takings Clause
Argument of Ronald A. Jacks
Chief Justice Earl Warren: Number 517, the National Board of Young Men's Christian Association et al., Petitioners, v. United States.
Mr. Ronald A. Jacks: Mr. Chief Justice, may it please the Court.
I believe we have made arrangements with the petitioner in the Solicitor General's office for the use of a diagram, if we may that the marshal is bringing in at this moment.
Chief Justice Earl Warren: Very well.
Mr. Ronald A. Jacks: I may just in advance say that this is an action for just compensation under the Fifth Amendment to the United States constitution.
It arises out of the United States army's seizure and use of private property, in this case buildings belonging to the petitioners during the Panamanian riots of 1962.
The issue before this Court as we view it is whether the Court of Claims correctly held the that U.S. military forces may sieze and use private property without incurring a duty to provide compensation under the Fifth Amendment whenever they are faced with a “immediate necessity.”
The facts are as follows: if I may briefly refer to them.
This is a chart that was prepared by the United States Government for presentation to the organization of American states following the Panamanian riots in the course of a charge that United States was the aggressor in these riots.
Its accuracy has been stipulated too.
The buildings that are here today are the real building, the real property in question.
This is the Masonic Temple and this is the YMCA belonging to the petitioners here.
This is Cristobal and Cologne in the Atlantic or northern end of the zone.
The boundary between -- this is the Canal Zone and this is the Republic of Panama and the boundary runs down the middle of this street, 11th Street and down Bolivar Avenue.
On the evening in question, January 9, 1964, United States Military Forces were called to this end of the zone in response to request from the civilian command and ordered to clear the zone of rioters.
United States Army troops starting here on Front Street moved down 11th street, cleared the zone of rioters, move behind the YMCA and the Masonic Temple, had brief scuffles with rioters who were then in both of those buildings, evicted them, moved them out to the streets -- thank you, move them out in the streets and took a position, stationed troops on the bound -- in the middle of the street just inside the border on the boundary line.
This is approximately from 10 to midnight on the night of January 4.
Shortly after midnight, they began to receive sniper fire directed at the troop stationed in front of the buildings.
U.S. Commander then ordered the troops --
Chief Justice Earl Warren: Directed at what station?
Mr. Ronald A. Jacks: Pardon me Mr. Chief Justice, directed at United States army troops, station in the street along 11th Street in Bolivar Avenue.
They're actually out in the street at that point.
Justice Potter Stewart: Could you point out where your building is again.
Mr. Ronald A. Jacks: Yes.
This is the YMCA Mr. Justice Stewart and this is the Masonic Temple.
Justice Potter Stewart: Right next to it.
Mr. Ronald A. Jacks: Right next to it.
The Masonic Temple forms the right end -- the building inside the right angle of the boundary in that point.
Chief Justice Earl Warren: Is that involved in the litigation too?
Mr. Ronald A. Jacks: Yes, it is Mr. Chief Justice.
Both the Masonic Temple and the YMCA are the petitioners in this action.
Troops are stationed along Bolivar Avenue in 11th Street, they began to receive sniper fire and at that point the local commander ordered them to withdraw into the YMCA, Masonic Temple and the Old Commissary.
Throughout the night, snipers continued to harass the army troops inside the building.
In the morning of the 10th, the mob began to form over here on Bolivar Avenue and directed a concentrated Molotov cocktail attack first at the YMCA where our company, a 140 men of troops were housed.
They finally -- about two o'clock in the afternoon of the 10th, succeeded in setting it on fire forcing the troops to evacuate at which point they moved down the street and began to concentrate on the Masonic Temple in which the army not only had troops but it established a command post and an observation post.
There is a photograph in the back of the appendix which shows the Masonic Temple.
It shows the roof as being higher than the other buildings in the area and having the shield that parapet.
It was from that position that the army was able to command this entire area both for observation and later in attempts to quell the rioters.
The mob was unable to set the Masonic Temple on fire due to a difference in construction although they did start some fires in the interior.
They there upon moved down to the old commissary not owned by the petitioners, owned by the Government and finally succeeded in setting that on fire with Molotov cocktails in the next day.
On the basis of these facts, petitioners made claim first in the part of the army and then with the Court of Claims contending that there was liability where the army had siezed and used petitioner's buildings as sources of refuge in defense.
The Court of Claims held --
Chief Justice Earl Warren: May I ask --
Mr. Ronald A. Jacks: Yes, Mr. Chief Justice.
Chief Justice Earl Warren: May I ask first, what if any damage was done to those blocks that were in that area where you have your pointer right now.
Mr. Ronald A. Jacks: The -- yes, Mr. Chief Justice, if you will see the --
Chief Justice Earl Warren: Yes, that -- those lines.
Mr. Ronald A. Jacks: -- shaded area indicates those were buildings that were damaged.
Chief Justice Earl Warren: Yes.
Mr. Ronald A. Jacks: There was no damage to these buildings here.
Chief Justice Earl Warren: No.
Mr. Ronald A. Jacks: No damage to these buildings down here.
These buildings were never occupied by U.S. Army troops.
The damage was done on two buildings occupied by United States Army troops during this course of the conflict.
Chief Justice Earl Warren: Yeah.
But how about those other blocks that you got in there with the -- with the lines over to the right a little.
Mr. Ronald A. Jacks: Over here?
Chief Justice Earl Warren: No, those cross lines (Voice Overlap).
Mr. Ronald A. Jacks: These are the buildings in question Mr. Chief Justice --
Chief Justice Earl Warren: Well, I know but they weren't all in this -- all in Masonic Temple (Voice Overlap) --
Mr. Ronald A. Jacks: No, the Masonic Temple was --
Chief Justice Earl Warren: What was done in that, I don't care.
Mr. Ronald A. Jacks: That's the Masonic Temple.
Chief Justice Earl Warren: Was there a general destruction done on that whole area?
Mr. Ronald A. Jacks: As to these buildings, Mr. Chief Justice.
This building that I'm pointing to right now is owned by the Government.
That was destroyed.
Chief Justice Earl Warren: Okay, what I want to know is this, you've got certain blocks that are right there in the area of these two buildings and you have them marked with diagonal lines across them like that.
Do you see what I mean?
Mr. Ronald A. Jacks: Yes, Your Honor.
Yes, Your Honor.
Chief Justice Earl Warren: Now, what damage was done to those blocks, not any particular building but those blocks other than the -- other than in those two buildings?
Mr. Ronald A. Jacks: In these three buildings?
Chief Justice Earl Warren: No, I'm not talking about three buildings; I'm talking --
Mr. Ronald A. Jacks: (Voice Overlap) --
Chief Justice Earl Warren: -- about this general area that's -- has those diagonal lines on them.
Mr. Ronald A. Jacks: There was no damage other than into the building Your Honor.
Chief Justice Earl Warren: Other than --
Mr. Ronald A. Jacks: These shaded areas indicate buildings not blocks.
Chief Justice Earl Warren: Just those three?
Mr. Ronald A. Jacks: Yes.
Chief Justice Earl Warren: Those three buildings.
Mr. Ronald A. Jacks: Yes, Your Honor.
Chief Justice Earl Warren: Well, the hash lines going down Bolivar Avenue or just marked the boundary line of it?
Mr. Ronald A. Jacks: That's correct.
Chief Justice Earl Warren: Well, that -- those are not buildings or any area of destruction or anything else.
Mr. Ronald A. Jacks: No, no.
No, they just indicate the boundary line in this case.
There is no damage here, no damage here.
Chief Justice Earl Warren: I can't read your legend from here but what is that mean, those diagonal lines?
Mr. Ronald A. Jacks: That says, buildings looted and damaged or burnt.
This is attached to the appendix Mr. Chief Justice.
The last page of the appendix --
Chief Justice Earl Warren: Oh, yes, thank you.
Mr. Ronald A. Jacks: On the basis of these facts the Court of Claims held that there was no liability for the seizure and use of these buildings.
That is the YMCA and the Masonic Temple, holding that there was no liability for occupancy of private property which is immediately necessary for the safety of troops, or to meet an emergency threatening great public danger.
Judge Davis dissented, Judge Davis said that on his basis of the applicable case law, he thought it clear that the Government is liable where at first takes the property for it s own military use and then exposes the place to enemy attack or revokes it leading to injury or destruction.
In this connection, Judge Davis said and we should emphasize this, there is no exception from liability as I read the materials for temporary seizures for military use in the face of imminent hostility or to meet an emergency.
Once the property is taken for a military use, the Government is responsible for a subsequent injury no matter how quickly that follows upon seizure.
Thus in our view the issue here between the majority and the dissent below is -- centers on all the important question on whether an immediate necessity or imminent hostility creates an exception to the general duty to provide compensation.
We think it does not and cannot that the Court of Claims decision if allowed to stand creates a grave and unwarranted threat to the citizens right of compensation.
For if an immediate necessity is sufficient to confer absolute immunity upon the Government whenever it seizes and uses private property then we are indeed faced with a new era of Governmental power.
The basic issue is --
Justice Abe Fortas: What is your --
Is your question here or at least one of the questions here whether this indeed constituted a seizure by the Government followed by the damage or whether it was -- this was the damage incurred in the course of a military or quasi military operation?
Mr. Ronald A. Jacks: No, Mr. Justice Fortas, I would characterize the factual element of the issue as to whether there was a seizure and a use for a military purpose and we take the position as that expressed by Judge Davis below that once there's a seizure and use by the U.S. Armed Forces for military purpose, there's a liability regardless of how the damage occurs.
Justice Abe Fortas: Let's see if I could get it this way.
Let's suppose that the United States troops had been drawn up in the street outside of these two buildings, that the mob then attacked throwing Molotov cocktails and doing whatever they did.
The troops then retired into these two buildings.
The conflict continued, damage resulted to the buildings.
Would you still contend that the United States must pay you for the damage done?
Mr. Ronald A. Jacks: Yes, Your Honor although that's not the facts of this case.
Justice Abe Fortas: I understand that but though --
Mr. Ronald A. Jacks: But I would contend that there would be --
Justice Abe Fortas: Well now, tell me why.
Mr. Ronald A. Jacks: Because in that case Your Honor, the army once it took those buildings.
Justice Abe Fortas: Well, the question -- there you're (Voice Overlap) --
Mr. Ronald A. Jacks: I'm using taking not on the constitutional sense Mr. Justice Fortas.
Justice Abe Fortas: Well, they don't say it.
Mr. Ronald A. Jacks: All right.
Justice Abe Fortas: They never say --
Mr. Ronald A. Jacks: Once the Army seized those buildings.
Justice Abe Fortas: But once the army retired into those buildings as part of its protective operation.
Mr. Ronald A. Jacks: I would say there would be liability because by so doing under the established case law, it then makes -- exposes those buildings to special response on the part of the opposing forces.
Justice Abe Fortas: Oh, you're -- what you're saying then amounts to the proposition that in any riot situation, any building to which is physically occupied -- which is physically occupied by the military forces of the United States, problems within this category that is to say that the United States is liable for the damage inflicted upon that building by the attacking mob.
Mr. Ronald A. Jacks: I would say Mr. Justice Fortas, I --
Justice Abe Fortas: Isn't that (Voice Overlap) --
Mr. Ronald A. Jacks: May I qualify that.
I don't think that I'd make quite that broad a statement, I would say --
Justice Abe Fortas: Now, what -- now that -- this to me is a critical area.
Mr. Ronald A. Jacks: Right.
Justice Abe Fortas: And what do you -- do you think it constitutes a compensable taking in a riot situation in which you don't.
Mr. Ronald A. Jacks: I would say the criteria would be as follows Mr. Justice Fortas.
First of all, there must be a necessity which justifies the seizure.
Not going to acquire their duty of compensations available but whether there's authority to take it.
Then, the use must be actual and not constructive or passive.
By that, I mean the army has to withdraw into the building, use it as a command post, the defense fortress and observation force as opposed to merely standing in front of the building or passing through for 30 seconds.
Then, the use of the army thirdly, gets out of that building must have some benefit to the Government as was present in this case.
It can also have a benefit to the owner but it must have a benefit to the Government.
Then, I should suggest fourthly that that benefit should relate to the specific mission that the army is involved in that particular case as it was here.
And that finally, that you should be of sufficient scope and duration.
Now, this will depend upon the facts of each case but to make it clear that it was more than fleeting or merely consequential.
In this case, the Masonic Temple was occupied for a period of seven days.
The YMCA for a substantial period of time until the troops were forced to evacuate it.
Justice Abe Fortas: Well, these are not simple standards.
Mr. Ronald A. Jacks: No, Your Honor, and --
Justice Abe Fortas: Now, let me just put this to you very simply, I'm -- because we're not engaged in what is entirely an academic exchange of verbal dialogue here.
Let's take one of these riot situations that the country witnessed, what -- some for -- last or so.
And let us suppose that the United States troops are there.
And they are in the street and the mob is throwing Molotov cocktails and stones and shooting and doing whatever they did.
And let us then suppose that the troops retire into or take refuge in or go into, go into let, us say, a building and from that building they take defense, they observe the mob and they take defensive action or whatever you want to call it, shooting guns at the -- in those circumstances.
Now, in your submission to the Court, is that a compensable taking and if it is not a compensable taking, what are the elements which distinguish that case from your case.
Mr. Ronald A. Jacks: I would say that is a compensable taking Mr. Justice Fortas.
And that the elements are substantially somewhere to those involved here.
Justice Abe Fortas: And you can't -- if we should disagree with you on the case that I have put to you then we would have to disagree with you on the case submitted to us for adjudication.
Mr. Ronald A. Jacks: Not necessarily Mr. Justice Fortas because I think this is a stronger case.
Here, we're involved with buildings that were held for a substantial period of time in which there was a substantial number of men involved to use throughout the riots and we're here, we have -- although we don't think it's necessary to make out liability.
Here, we have a fairly strong evidence of a causal connection between the seizure and the result in destruction.
The point being that just the buildings occupied by the troops is indicated by the hash marks or the ones that were substantially destroyed.
Justice Abe Fortas: Well, I may be wrong on this but by recollection of reading the documents here is that the damage to the Masonic building occurred after the troops had retired into that, after the YMCA building was set on fire.
Mr. Ronald A. Jacks: No, Your Honor.
If I may correct you on the record, the facts are that the Masonic, there were rioters in the Masonic Temple, in the YMCA that were looting to just some extent destroying the interior when the army first arrived.
They moved those rioters out of the buildings.
We don't make any claim for that damage.
The army then took up positions in the street.
They were subsequently forced to retire into both buildings, both buildings at once.
That is the Masonic Temple and the YMCA.
And the damage to those structures by a Molotov cocktail occurred the day and the second day following that.
Justice Abe Fortas: Why don't you make the claim for that part of the damage inflicted in the -- those initial phases of the operation that was inflicted by the army, let us say by the exchange of civilities between the army and the mob?
Mr. Ronald A. Jacks: Well, because Your Honor, that damage to be precise if I may on the basis of the record, the damage -- the initial damage is all done by the rioters, a very little -- they have got in and they were looting the interiors of the buildings and the army moved them out.
And so, there is no damage really done by the army --
Justice Abe Fortas: Let me ask you one more question and then I'll leave you alone.
Do I understand from your last statement then that if the rioters had been in the building and the army had moved in troops to oust them and the army had inflicted damage on the building in the course of that operation by shooting the glass and the television, western movie accuracy for example, that the army -- in your submission, the army would have been liable for the resulting damage.
Mr. Ronald A. Jacks: Would not have been liable, Your Honor, because --
Justice Abe Fortas: Then your submission, it would not?
Mr. Ronald A. Jacks: It would not because there's no use made of that building, Your Honor.
That building is really in that case, a random consequence of battle and that just happened to be in the way of the exchange but the army never seized and used that building.
Either the key, the pivotal point Your Honor is that army has to take and retire to and use and at that point as Judge Davis said liability attaches.
Justice Thurgood Marshall: But Mr. Jacks, do I understand that the army went there to protect these two buildings.
Mr. Ronald A. Jacks: It went there Mr. Justice Marshall for the purposes of clearing the rioters from the zone and protecting the zone in general.
Justice Thurgood Marshall: Including those two buildings?
Mr. Ronald A. Jacks: Including those two buildings, yes.
Justice Thurgood Marshall: And the use of that building was for the same purpose?
Mr. Ronald A. Jacks: The use of the building we contend Mr. Justice Marshall was primarily to protect the troops.
That's spelled out on the record, which is stipulated, too.
That was the reason the army withdrew into the building, was to protect the troops.
Justice Thurgood Marshall: Well, if they had withdrawn the troops around -- from around that building, back down that street, what would happen to those two buildings?
Mr. Ronald A. Jacks: If they had been destroyed, there'd be no claim here, Your Honor, because there had been --
Justice Thurgood Marshall: Well, wouldn't -- wouldn't they had been destroyed?
Mr. Ronald A. Jacks: Wouldn't -- it's not clear, it's not clear.
I think that the --
Justice Thurgood Marshall: Well, the -- either the Masonic Temple or the YMCA have troops?
Mr. Ronald A. Jacks: Did either of them have --
Justice Thurgood Marshall: Yes.
Mr. Ronald A. Jacks: Yes, they did, Your Honor.
Justice Thurgood Marshall: Both troops?
Mr. Ronald A. Jacks: Troops inside the buildings.
We mean the privately --
Justice Thurgood Marshall: Oh, I mean, they hire troops?
Mr. Ronald A. Jacks: No.
Justice Thurgood Marshall: No, obviously they didn't.
They needed the army to protect those buildings or they wouldn't be protected.
Mr. Ronald A. Jacks: It's not --
Justice Thurgood Marshall: And if they had stayed outside of the building to protect the building, you have no claim.
But if they go inside of the building for the same purpose of protecting it, you do have a claim.
Mr. Ronald A. Jacks: May I rephrase my answer to that question, Mr. Justice Marshall.
Justice Thurgood Marshall: It would help.
Mr. Ronald A. Jacks: I think that they withdrew into the buildings to protect the troops primarily.
If they had not gone into the buildings and the buildings have been lost, there would be no claim.
For example, there were troop stationed all behind here, but never in these two buildings here, yet these buildings were never destroyed.
We don't contend that it's necessary to show that the mob moved just against the buildings that the army occupied to make out our test, because once there is seizure and use, there's liability but we think that is an important point.
Justice Byron R. White: Well, what if they had retired behind the building so to keep the rioter -- the building between them and the rioters, and the rioters in the process of trying to shell or shoot the troops had destroyed the building?
Mr. Ronald A. Jacks: Then I would not be making the claim here today, Mr. Justice White.
I would contend although that's a close question that that falls within the true battle damage situation.
Justice Byron R. White: But they were still using the building for protection.
Mr. Ronald A. Jacks: In the facts of this case, I think that could be argued both way.
If you could show that had put the buildings up as a buffer, that they'd in effect deliberately sacrifice them to protect the troops, then I think we'd have Caltex and we would be prepared to argue as we do in point number two of our brief that Caltex should be overruled.
Justice Byron R. White: But as long as it stands, you couldn't be covering it?
Mr. Ronald A. Jacks: Would not without overruling Caltex I believe in that case if they used -- if they sacrifice the buildings to protect the troops, but we of course we contend that's not the effect.
If I may Mr. Chief Justice, I should like to use my remaining time in rebuttal.
Chief Justice Earl Warren: You may Mr. Jacks.
Mr. Ronald A. Jacks: Thank you.
Chief Justice Earl Warren: Mr. Strauss.
Argument of Peter L. Strauss
Mr. Peter L. Strauss: Mr. Chief Justice and may it please the Court.
Petitioners seek to recover from the United States in this case the value, not of the use of their buildings but of the damage which rioters inflicted on those buildings during the course of general anti-American riots in the Canal Zone.
The President, the Congress and this Court have unanimously agreed on the legal principle which ought to apply in that situation and I should like to quote it.
It is a general principle of both international and municipal law that all properties held subject not only to be taken by the Government for public uses, in which case, under the Constitution of the United States, the owner is entitled to just compensation.
But also subject to be temporarily occupied, which is this case or even actually destroyed, which is perhaps Caltex is not involved here.
In times of great public danger and when the public safety demands it.
And in this latter case, Governments do not admit a legal obligation on their part to compensate the owner.
That statement as the court may recognize from the Court of Claims' opinion in this case originated in the veto message from President Grant to the Congress.
It was then quoted with approval in the Lawrence report, House Report 134 of the 43rd Congress, second session, which is the most thorough congressional study ever undertaken of government liability or damage claims and which is acquired independent stature as a source book on international law in this area.
And this Court then adopted the statement in the Pacific Railroad case, page 238 of Volume 120 as its own test of constitutional taking.
It remains the Government's contention today that the temporary occupancy of premises under the immediate compulsion of a public emergency and for the purpose of dealing with that emergency is not a constitutional taking for which compensation is required.
Now, I think counsel has fairly stated most of the relevant fact that there are a few additional things which I'd like to emphasize.
First, it's quite clear from the record, these riots started well before the troops arrived, two or three hours earlier.
The troops arrived down in this area and at the time they arrive, there were rioters throughout this general area.
There were no rioters down here.
When the troops came, they found the rioters at the buildings in which petitioners are now claiming compensation.
Then, when the sniper firing started, and it wasn't only sniper firing, the Court of Claims is quite clear, the record is quite clear that Molotov cocktails were being thrown while the troops were on the streets.
The army fell back from its positions and it did not do so only along Bolivar Avenue into these two buildings.
It was forced to fall back into the Commissary building, it was forced to fall back here where you can see there are not many buildings.
Justice Potter Stewart: I can't see Mr. Strauss. I can't see.
Mr. Peter L. Strauss: Excuse me.
Justice Potter Stewart: You're between me and the chart.
Mr. Peter L. Strauss: It was forced to fall back here where you can see there are not many buildings in general along the boundary, behind the railroad tracks and there are photographs in the exhibits of record in court, not reproduced in the joint appendix which show the bunker positions built with sandbags behind this railroad track.
That left the troops behind the sanitation building, here.
There were no troops in the sanitation building.
That did not stop the rioters from burning the sanitation building.
During the course of the riot, the sanitation building was completely destroyed.
So, it seems to us that this indicates the negative of petitioner's theory that there would have been no burnings had the troops not been in their building.
And it certainly also indicates the negative of the theory that it was to these two buildings particularly that the presence of the troops drew the rioters attack.
The rioters were all along the boundary line, although from the start, they were concentrated principally in what we've called a salient and they didn't favor any buildings particularly with their attack.
They've made their attack throughout.
Justice Abe Fortas: Oh, I suppose the army a month in advance of this trouble had said, “We foresee that there's going to be trouble and we therefore occupy these two buildings.”
Mr. Peter L. Strauss: Well, I think we have a much different case Justice Fortas.
Justice Abe Fortas: Do you think it might be -- I know it would be different and I appreciate you're agreeing with me, but would that be a compensable taking in the constitutional sense?
Mr. Peter L. Strauss: I think it would be and I --
Justice Abe Fortas: And the -- that compense -- in the payment for that would have to cover the consequential damages, wouldn't it or would it?
Mr. Peter L. Strauss: It's not clear, the extent to which it would.
I may say that the damage issue, how much ought to be paid if there was a taking in this case is not settled on this record and that there will be -- would be required to the further proceedings to settle that question.
We do concede that the rioters did the amount of damage that petitioners claim they did.
Justice Abe Fortas: But suppose the --
Mr. Peter L. Strauss: But the --
Justice Abe Fortas: If the army a month in advance had occupied these building and the riots have occurred and the rioters had destroyed the building, do you think it's an open question as to whether the Government would have to pay the total cost of the building as distinguished from just compensation for use and occupancy without taking into account the damage done by the riots.
Mr. Peter L. Strauss: The Government would be liable and if the Court concludes that there's a taking in this case, of course the Government would be liable (Voice Overlap) --
Justice Abe Fortas: No, no, no, that's not my question.
Mr. Peter L. Strauss: That's alright, I agree.
Justice Abe Fortas: The critical -- no, wait a minute --
Mr. Peter L. Strauss: If I may say --
Justice Abe Fortas: Wait a minute, Mr. Strauss.
Critical question is whether the Government would be liable in that situation or the destruction of the building which was brought about as a result of the conflict between the rioters and the troops.
Mr. Peter L. Strauss: It seems to me there would be a difficult factual question, but one which might possibly be resolved as to what damage would have occurred had the troops not been there.
And that if it could be determined that some damage would have occurred had the troops not been there, that damage could be subtracted, but otherwise, I would agree with the preposition that the Government would be liable.
Justice Abe Fortas: Well, I'm not sure that I would but you say you think the Government would be liable for the damage that occurred in the course of the riot unless such part of that damage as could be shown to be not attributable to Government occupancy.
Mr. Peter L. Strauss: Well, if I may explain the basis on which I do that it seems to me you have --
Justice Abe Fortas: Well, that's what you're saying is.
Mr. Peter L. Strauss: That's what I'm saying and I'm saying it because it seems to me you have your finger on the distinction which is crucial to the so-called target doctrine in which petitioners may rely.
Under that doctrine as petitioners have already argued, if the Government makes a target of a particular building by turning it into a fortification, then in principles of international law at least although it has not been held in the domestic context.
The Government is liable for the damages done, but it is quite clear that in this case, no such target was made.
For as Professor Bouchard points out in the work the petitioners cite, the state is responsible for the use and occupation of buildings and real property only if they're being used in more than a temporary way and the use is not impelled by military necessity, thus he says and I quote “the target doctrine extends only to property occupied in advance of actual fighting rather than such as is occupied during an attack or retreat.”
So that even conceding as I have the answer to your question, the established principles applicable in this case require that no compensation be paid.
There is nothing in the record to suggest that there was any previous use of these buildings.
There were riots in the Canal Zone in 1959 booked into them and so far as I can determine, there was no use made of these buildings at that time.
It seems to me that the principal task I have to carry out here is to make a case for what we have called the public emergency exception for what President Grant referred to as the exception for temporary use during and under the compulsion of war.
And to do that, I have to start at some distance from ordinary Fifth Amendment concept.
In particular, I want to look at the body of law which would ordinarily govern the riot situation, that is to say municipal liability for tort.
If a person's property were destroyed because the police failed to protect it at all or withdrew from the area when the rioters seemed to be getting the upper hand, he might file a claim on the theory that the police hadn't given him adequate protection or he might make the same claim if he thought that because police use teargas or Billy clubs instead or riffles or machineguns on looters, looting went unchecked.
And indeed, there are many such claims which have been filed in New York and in other cities which were the subject of urban riots.
Those claims are tort claims and it's apparent that in the absences of statutory liability for riot damage generally, those claims could not succeed.
The decisions made whether he used guns or not, where is the most effective place from which to fight a riot, how is the most effective way to deal with it are quite plainly discretionary functions of Government for which no Government concedes tort or other liability.
Under federal law for example any such liability would be foreclosed under the Tort Claims Act.
And the reasons for denying liability and not -- no lose has occurred, it's rather the desire to avoid any interference with official action but even the prospect of litigation or liability might bring.
It's to permit the officers to concentrate exclusively on the most efficient way of dealing with the danger.
The public necessity exception can be viewed as an extension of this discretionary function reasoning.
By excusing policemen or troops from eminent domain liability from entering buildings in the heat of emergency and for emergency purposes, it too protects their decisions from unwanted influence.
Had the troops in this case simply left the buildings to the mob there would have been no liability.
Had they used weapons which kept them off away from the buildings, there would have been no liability.
Indeed, it is significant to what the real characterization of this case ought to be, the petitioners make no claim for the value of the use of their premises for what would be the ordinary Fifth Amendment measure of relief.
They say the troops had a right to be there.
They seek only to recover the damage done by the rioting mob when the troops were unable to control them with the weapons their commander allowed them to use.
Thus, petitioners seek exactly the damage that New York merchants will be unable to obtain and should be unable to obtain because of the discretionary function doctrine.
We believe it is as important to foreclose the possibility of liability here.
There have been riots such the Harlem riots of 1943 --
Unknown Speaker: Excuse me Mr. Strauss.
Did I under -- did you imply that if there were a compensable taking?
Its measure here would be the use.
Mr. Peter L. Strauss: I think that certainly would be the primary measure.
Unknown Speaker: That it -- well, what I'm asking is, is it your position that whether any at all where they entitle any compensation would have to be measured by the value of the use for those seven days of the buildings --
Mr. Peter L. Strauss: Well, no --
Unknown Speaker: Not all, why the damage that was done?
Mr. Peter L. Strauss: The closest case as this Court have -- has decided that -- the closest this Court's cases come to that question with a lease hold cases that arouse out of World Ward II such as the General Motors case.
And in those cases, the Court seemed to be saying that you didn't simply get the amount of money that was -- could be valued for the time that the Government was there.
There was also the inconvenience to petitioner and that he was entitled among other things to get the premises back in the condition in which he gave them to the Government and we cannot see any particular reason for avoiding that liability except to the extent we would argue that the Government would not be responsible if it had a lease hold for the damage done by an earthquake.
Similarly, it might not be responsible for the damage done by rioting mob only to the extent that the Government could be said to have brought that damage on to the buildings this was the basis behind my answer to Justice Fortas, could the Government be held liable for the rioting mobs then.
Justice Potter Stewart: But your claim is they're liable at all?
Mr. Peter L. Strauss: No.
No, no liability here at all.
I make reference to the failure to claim rent value only to show that this really isn't a Fifth Amendment claim.
It seems to us that it is in everything but name a tort claim.
It's for tort damages and it looks exactly like the claims that are arising out of the urban riots today except for this particular characterization that petitioners can make, can argue because troops were forced by the rioters back into their buildings in order to be able to carryout their function of protecting the zone and still stay alive.
Justice Potter Stewart: If that's what it is in fact the equivalent of a tort claim against the municipal authority, then your war cases aren't very helpful, are they?
Mr. Peter L. Strauss: Well, I -- I'm trying to explain the war case doctrine in -- sort of --
Justice Potter Stewart: That's not relevant if this is the kind of case you told us it is.
Mr. Peter L. Strauss: I think it is in the sense that I think that the law has always had.
Justice Potter Stewart: This wasn't a war, these were not enemy troops.
They were civilian rioters, aren't they?
Mr. Peter L. Strauss: They were civilian rioters.
Justice Potter Stewart: There's no war.
Mr. Peter L. Strauss: I think that --
It was close enough to being a war perhaps with the same sort of situation as these claims (Voice Overlap) --
Justice Potter Stewart: Congress having been voted on it, haven't they?
Mr. Peter L. Strauss: No, they had not.
There have been riots such as the Harlem riots of 1943 in the Cambridge, Maryland riots of two summers ago in which for what they considered to be good reasons.
The police did not go into the riot zone but simply tried to contain the riot in the area where it was occurring by protecting the fringes.
It seems to us that there's no apparent justice in giving the protected people at the fringes of the riot area.
A better shot at compensation for whatever damage they suffered despite the presence of police or troops than those in the riot zone who received no protection.
Since urban violence and hostility to the police go hand and hand, it's not going to be difficult in any future riots situation for plaintiffs to make the claim that the presence of police in their area drew a rioters attack.
When the Government is responding to the emergency situation in other words as under the discretionary function generally, whether it's an emergency situation of war or of riot, it ought not to be subjected to the pressures and distortions that a preferential rule of liability can bring.
Moreover, it should be clear that petitioners are not the only ones who suffered losses at the mobs hand.
And when the ordinary Fifth Amendment case, we have a very clear sort of question to be resolved or real question, social question to be resolved.
You have on the one hand a piece of -- a man who owns a piece of property and that property is taken from him.
If you have on the other hand society as a whole which benefits from the taking.
And the general question is who is going to bear that loss?
The riot situation, the war situation it seems to us is quite different.
Total property damage done is immense.
In the Canal Zone, it was about 10 times as great as petitioners claim here.
Lives are lost, many are injured.
Only a few of the citizen's damage in such a catastrophe will have troops or police or fireman on their premises.
If only they are compensated, the other injured through their taxes have to bear two burdens of loss, nor can it be said that what the community has gained it ought to pay for.
Few gain from a riot or war or a major fire.
The community should be free to deal with the losses it suffers as a whole and not require to give some citizens preferential treatment.
There is an enormous difficulty and basic unfairness in determining whether such calamity losses occur because the Government is present and how much of the loss would otherwise have occurred and hence need not be compensated.
The rule that petitioners seek might be just as arbitrary as the laws present rule of letting such losses lie where they fall.
The problem of distributing them is too complex to be solved by compensating those who receive the most direct effort and protection by the Government.
No case we have discovered in this or any other Court has required the Government to pay on Fifth Amendment grounds or any other grounds for the damage of rioters or fires or other instruments of catastrophe during Government efforts to contain them.
No case we have discovered characterizes Government entry unto private property under the compulsion of such an emergency as it take, as shown in our brief the law and practice since the founding of the nation has been entirely to the contrary.
Even destruction which the Government itself deliberately brings about need not be compensated.
Indeed, other cases of such entry or generally treated as tort matters.
If for example, a fireman damages a hedge in bringing a hose to fight a neighbor's fire or a policeman must breakdown the door in order to arrest someone who's hiding behind it, those claims are not ordinarily brought as Fifth Amendment claims.
The claims are brought as matters of tort.
The fireman was negligent or the policeman had no necessity or legal basis to make his arrest.
And this is no failure of analysis.
It's entirely consistent with the law and this Court has followed in determining whether or not taking has occurred.
Under that approach, conduct which is basically tortuous or would be if it occurred between private citizens is insufficient in itself to be a taking in the constitutional sense, thus in the Three Portsmouth Harbor cases in Volumes 231, 250 and 260 of the report.
The Court twice found the firing of harbor guns over petitioners land not to have been takings.
When the third compliant was filed, the Court concluded that that showed sufficient duration of abuse and sufficient intense of the abused to show that a servitude had been imposed.
Similarly in Cosby and in Griggs versus Allegheny County, this Court stressed the number of times airplanes were flown low over petitioner's houses in discussing the taking issue.
In United States versus Dickinson in 331 U.S., the Court said that property is taken in the constitutional sense when inroads are made on an owner's use of it to an extent that as between private parties, a servitude has been acquired either by agreement or in the course of time.
There was no agreement in this case and if the servitude did not already exist, the one brief occupancy of petitioner's buildings was insufficient to impress one in itself.
Like the result of the first firings of the guns over Portsmouth Harbor, the first flights of planes over Mr. Cosby's chicken farm.
The damage in this case would be answerable only in tort if it were answerable at all.
Justice Potter Stewart: Do you think it makes any difference in this case if this happened in the Canal Zone?
Mr. Peter L. Strauss: That I would not think so because this Court is being called upon to decide a constitutional matter generally and no distinction occurs to me that would respond to the fact that it happened in Canal Zone.
Justice Potter Stewart: The Canal Zone has a -- well, a Governor appointed by the President of the Untied States, is that it?
Mr. Peter L. Strauss: It is the -- it is an unusual situation, I'm not entirely sure I understand it myself.
There is the Canal Zone -- Panama Canal Zone Company and then there is also the Canal Zone Government.
The Canal Zone Company which is extensively a corporation but under Government charter and owned entirely by the Government is responsible for most physical affairs and owns most of the property in the area.
The Canal Zone Government supplies what a City Government would ordinarily supply, municipal protection, fire protection, police protection.
And in addition there are large army bases down there such as the one from which this troops came.
This were not Canal Zone troops, this were Government troops the same as Government troops in any other --
Justice Potter Stewart: What do you mean they were not Canal Zone troops?
Mr. Peter L. Strauss: In the sense that they weren't Canal Zone policemen or Canal Zone firemen.
They were not employees of the Canal Zone.
Justice Potter Stewart: Are there Canal Zone policemen and firemen?
Mr. Peter L. Strauss: There are Canal Zone policemen and firemen and as in Detroit they were the first to attempt to quell the disturbance and they failed to do so and the troops were then called in.
Justice Potter Stewart: By whom?
Mr. Peter L. Strauss: Well, as I recall the facts, Lieutenant Governor of the Canal Zone asked the military to take over which is perhaps a unique situation of the Canal Zone and the military on assuming control then brought in the troops to help control the riots.
We do not believe that the Mitchell case, the Russell case or for the reasons I have already discussed.
Any of the cases in international law applying the so-called target doctrine require any different conclusion.
This Court itself showed the way past Mitchell and Russell in the Pacific Rail Road case and then Caltex.
Mitchell, the trader was forced to accompany the armies some three hundred miles to the place where his goods was destroyed -- were destroyed.
Russell involves steam boats which the army commandeered to hold Government freight on the western front.
Thus both of those cases are like the case which Justice Fortas put in which under international law, in which under international law compensation would be required.
They were both cases in which the army took the property involved in advance of fighting and for its own use whether for defensive purposes or from any other and not cases like this one.
In which the army was forced into the buildings by fighting without advanced plan or arrangement to do so.
Justice Hugo L. Black: Oh, if they had known there that the commanding, the General, the Army or whatever else you name, at 12 o'clock noon, you look into the open, you decide the best place to conduct the fight would be from the YMCA and they fought there within 30-minutes.
Mr. Peter L. Strauss: I think that would be a difficult case.
I think --
Justice Hugo L. Black: That would what?
Mr. Peter L. Strauss: I think that would be a difficult case.
I think it's the sort of case where if it occurred by itself, if it were one incident.
If that war or that battle were the only occasion on which damage had occurred.
There might be a strong tendency to say that there was liability in those circumstances but if on the other hand it was one out of 10,000 operations in a huge conflict the court might find that his visit to the site at 12 o'clock was in itself the product of an emergency that was developing on the other side of the town and consequently compensation need not be paid.
Justice Hugo L. Black: What's the difference -- except in point of time.
Mr. Peter L. Strauss: As I understand the rationale of the doctrine.
Maybe I can -- I should say that I'm perhaps giving too much credence to this international cases involved in the target doctrine.
Maybe I'm following them too far, those cases arose in a special situation where you had neutrals, foreigners living in one country which was at war with insurgents or some other country.
And the troops of the country in which these neutrals lived had to fight a battle with their opponents and chose.
And the choosing is really the important part and chose the place where the neutrals live as the place to fight their battle and the international cases have held that in those circumstances compensation is to be paid.
Now there is a notion in that that the choice is an invidious one that when the commander of the Government troops is thinking where shall I fight?
He may make the decision I'd rather fight where it's not my people's property being damaged.
I'd rather fight on the land of the imperialist sugar company or something of that fashion.
And this rule of compensation was fashioned and applied entirely in cases which might be considered imperialist cases.
They involve Latin-American Governments on the one hand, resisting liability and European and American Governments on the other, North American Governments on the other hand insisting upon liability.
In such cases, and as we cite in our brief there a number of other cases which refuse to apply the doctrine and refuse to apply it because the (Inaudible) finds there that the property of natives was equally exposed to the risk of harm.
There wasn't any discrimination in this case in other words.
So that's a doctrine which arise not only out of the fact of choice but also out of the existence of discrimination and perhaps I should insist that the possibility of discrimination should be there as well as the factor of choice.
But the thing which distinguishes the question you put to me Justice Black, from this case is the factor of choice.
That at least in that case one could say that the general had visited the area and looked it over and said, “Here we fight.”
Whereas in this case, there is no such factor, the troops went to where the rioters were.
They had no choice about it.
The rioters were there when the troops arrived.
They went to where the rioters were and they fought them there and they stayed there no longer than there were rioters in the vicinity.
Justice Hugo L. Black: They went to where the rioters were and then get into the building, isn't it?
Mr. Peter L. Strauss: They were driven into the buildings.
They first took up positions here along the street and then after one soldier was killed, several were wounded, and sniper fire was going at them and Molotov cocktails were being thrown at them, they decided they could no longer stand in the street.
Justice Hugo L. Black: Do I understand also Mr. Strauss that when the troops went in there, they had to put rioters out.
Mr. Peter L. Strauss: That's right.
Justice Hugo L. Black: Rioters were already in the building.
Mr. Peter L. Strauss: Rioters who in the case, to the YMCA were already burning the building.
Justice Hugo L. Black: They're already in the building and they had to put them out in order to defend the building as well as protect their own lives.
Mr. Peter L. Strauss: That's right but they did not stay in the building as that time so far as the record shows.
Justice Potter Stewart: The border between the zone and the public, is that the street, what -- Bolivar?
Mr. Peter L. Strauss: In part it makes the little job --
Justice Potter Stewart: Yeah, but right -- about there where the YMCA building is, that's the Bolivar is too.
Mr. Peter L. Strauss: That's right.
Justice Potter Stewart: Were down the middle of the street?
Mr. Peter L. Strauss: Right down the middle of the street.
Justice Potter Stewart: Or one -- or is one side of the other of the street?
Mr. Peter L. Strauss: No, in the middle of the street.
It's a very free access, part of the reason for that it doesn't show on this map is that Cologne which shows here as the Republic of Panama is on the peninsula.
This is its only land border here, so that this -- I don't know if you can see it, this corridor down here is the only access which the citizens of Cologne have to other parts of Panama that is Panamanian.
The map continues more or less like my hand with sea around it on those sides and then this is the border which you see here.
Justice Potter Stewart: And was there -- the rioters actually -- they did more than just throw things across or shoot across, they came across themselves, did they?
Mr. Peter L. Strauss: They were trying to come across, yes.
Justice Potter Stewart: But did they succeed?
Mr. Peter L. Strauss: They were in the zone and they repeatedly tried to attack the zone, they also attack although did not succeed in burning.
In fact the small building down here, they attacked something which you will find referred to as the old firehouse which is this building here.
They were burning railroad ties along here.
Justice Potter Stewart: Now, they did this by throwing --
Mr. Peter L. Strauss: Molotov cocktails.
Justice Potter Stewart: -- Molotov cocktails across or by coming across themselves?
Mr. Peter L. Strauss: Well, they would run up.
There was at one point an effort to push a burning car across the boundary here.
The difficulty was that the tear gas that the troops were using couldn't keep the troop -- the rioters far enough from the building to keep them out of the reach of the Molotov cocktails.
I think one could put it that way have they been using something with a little longer reach, a 30/30.
They might have been able to keep them away.
Chief Justice Earl Warren: Mr. Strauss is there anything in the record to show that when the troops went there, they intended to use the YMCA building or the Masonic Temple as a rendezvous for the troops?
Mr. Peter L. Strauss: No, not that I'm aware of.
There is one other matter that I should point out about the facts as long as counsel has mentioned it, I would just like to stress it.
The YMCA and Masonic Temple are separate entities.
They are represented by one counsel but they are otherwise separate and this business of observation post and command post applies only the Masonic Temple.
Troops were in the YMCA for only 12-hours and there was no indication that during the 12-hours they were there.
There was any command function or similar function performed.
Now -- well, in conclusion, I would just like to state again --
Justice Hugo L. Black: You say they were there for 12-hours.
Mr. Peter L. Strauss: At the YMCA they were in the building for only 12-hours from midnight till about noon on Friday.
Justice Potter Stewart: Both are parties here and litigants here, aren't they?
Mr. Peter L. Strauss: They're both litigants here, that's right.
Justice Potter Stewart: And how long were the troops in the Masonic Temple?
Mr. Peter L. Strauss: Counsel says for a week.
I wasn't aware that it was that long but it was until at least the 13th.
Justice Potter Stewart: And there was an observation post set up in the Masonic Temple?
Mr. Peter L. Strauss: There was an observation post set up in the temple after the troops have been driven into it and as part of their efforts to continue to maintain the zone boundaries.
There had -- there's no indication that it was set upped in advance.
Chief Justice Earl Warren: Mr. Jacks you may proceed.
Rebuttal of Ronald A. Jacks
Mr. Ronald A. Jacks: Thank you Mr. Chief Justice.
I should only like to comment, I believe Mr. Justice Black you asked how long were the troops in the YMCA.
It was until about 2 o'clock on the afternoon of the 10th for 14 hours and they left only because the fire started by the Molotov cocktails drove them out.
They had to abandon the building, they could no longer inhabit.
Justice Hugo L. Black: What's your idea about how they decided to get there?
Mr. Ronald A. Jacks: How the troops decided, you mean to take over these buildings?
Justice Hugo L. Black: That's right.
Mr. Ronald A. Jacks: The record is not clear as to when that choice occurred but it seems to me that it's apparent for -- hence to say that when the troops in the street in front of these buildings began to receive sniper fire and that it was a prudent decision to withdraw into these buildings, one.
Two, the Masonic Temple as I eluded to earlier is particularly well suited for a command and observation post because it's the highest post, the highest building in that area and if the Court will forgive a personal reference if one would go there as I have.
You could see that you could see the entire zone at that point and command whatever action you wanted to take.
Justice William J. Brennan: Was there -- is there fact finding --
Justice Hugo L. Black: The facts in this --
Justice William J. Brennan: -- what -- which states the reason why they withdrew into the building?
Mr. Ronald A. Jacks: Yes.
Justice William J. Brennan: What is the fact finding?
Mr. Ronald A. Jacks: Mr. Justice Brennan the facts say as developed in three documents.
One, the formal presentation before the OAS by written form, two, statement of facts to the general counsel in the army to me and three, an oral presentation all indicate as we point out in our brief that the troops moved into the building to protect the troops.
Those were the statements that the United States Government have given assigned as the reason for the seizure of these buildings.
Justice William J. Brennan: So there's in the way of a fact finding that they took the buildings in order to establish command posts?
Mr. Ronald A. Jacks: Yes, the facts in this case are stipulated Your Honor on the basis of this formal presentations by the Government and those facts clearly show that is the Governments own version of the fact show that -- or admit that the buildings were taken as command post, observation post and initially seized to “protect the troops.”
I believe --
Unknown Speaker: What --
Justice Thurgood Marshall: How did these troops get in that position where they needed protection?
They got in that position because they were there to protect the building, am I right?
Mr. Ronald A. Jacks: I would say that that was one purpose Mr. Justice Marshall but the paramount purpose was to protect the zone.
Not to protect this particular buildings --
Justice Thurgood Marshall: They --
Mr. Ronald A. Jacks: -- but to protect the zone.
Justice Thurgood Marshall: Am I correct that they went into the buildings and threw the Molotov cocktail people out?
Mr. Ronald A. Jacks: There were no -- the record doesn't indicate that there were Molotov cocktails I believe in the part of the rioters in the building at the time when the troops first entered and cleared them out.
There may have been some they found there but that is not in dispute here.
We don't --
Justice Thurgood Marshall: So what -- the fire is in the building?
Mr. Ronald A. Jacks: In --
Justice Thurgood Marshall: By the first cocktail.
Mr. Ronald A. Jacks: In the YMCA yes and no claim was made for those.
Justice Thurgood Marshall: Well, there were fires there.
The troops didn't start the fire, somebody else started it.
Mr. Ronald A. Jacks: That's correct, and they were quickly put out.
Justice Thurgood Marshall: And can there be any question that the major part of their job as witness of fact that they were lined up in front of the YMCA building, was it they were there to protect the building?
Mr. Ronald A. Jacks: I would say not that building again Mr. Justice Marshall, they were lined up all along the boundary line for blocks in either direction.
Justice Thurgood Marshall: Yeah.
Would you suggest that in the future that a situation like that, the army just let the building burn up?
Mr. Ronald A. Jacks: No, no Your Honor.
I'm suggesting that where the army takes a building, seizes it, retires into it and use it --
Justice Thurgood Marshall: What is the difference between going and seizing a building and being driven into a building?
Mr. Ronald A. Jacks: I'm not so sure that they were driven into the building but I do -- I don't -- I think that in this case it's the use of the building, that's the crux of a --
Justice Thurgood Marshall: If they seized so as it disputed the facts.
One soldier was killed right there.
Mr. Ronald A. Jacks: In front of the building.
Justice Thurgood Marshall: Right there and others were wounded.
Mr. Ronald A. Jacks: Yes Your Honor.
Justice Thurgood Marshall: And there was sniper fire?
Mr. Ronald A. Jacks: Yes Your Honor.
Justice Thurgood Marshall: And I -- uncontrolled sniper fire is coming this way toward me and I backed up into a building.
I am not seizing that building, am I?
I mean, speaking only myself; I'm not speaking about all of them.
Mr. Ronald A. Jacks: I believe Mr. Justice Fortas indicated we can call that withdraw -- retiring into.
I take the --
Justice Hugo L. Black: Mr. Jacks.
Mr. Ronald A. Jacks: Yes sir.
Justice Hugo L. Black: I understand that your claim is that they were there to protect the whole zone and in protecting the whole zone they have chose this place as the best place to protect the whole zone and if they must -- subjected the Government to pay for it because the purpose of compensation though -- to equally distribute the cost of warfare or whatever that is among those who are (Inaudible) --
Mr. Ronald A. Jacks: Yes Mr. Justice Black, you've stated --
Justice Hugo L. Black: Is that a particular lost?
Mr. Ronald A. Jacks: You stated --
Justice Hugo L. Black: You're not claiming are you that they would be liable just because of the battle where they injured some property?
Mr. Ronald A. Jacks: No.
It's the seizure and use of these buildings to protect the entire zone.
Justice Hugo L. Black: But it have to be actual seizure with the hands or what does it have to -- what do you mean by seizure?
Mr. Ronald A. Jacks: Well, as I indicated to Mr. Justice Fortas when we were discussing factual criteria, I think there has to be an actual use as going into the building, establishing the defense fortification, a command post.
Justice Hugo L. Black: They in defend then on whether the Government took charge of these to make these people.
The target -- what was bound to be a tremendous personal lost to the YMCA for the protection of the zone, is that you're claim?
Mr. Ronald A. Jacks: Yes Your Honor that once the Government decides that the YMCA and the Masonic Temples buildings are to be sacrificed, if they are to be sacrificed by the common good then the public first must make good and that we can't and that seems to me the central issue here is we can't deny liability on this ground of immediate necessity that --
Justice Abe Fortas: Well, what would happen if the troops hadn't gone in?
Mr. Ronald A. Jacks: Pardon me Mr. Justice Fortas?
Justice Abe Fortas: What would have happened if the troops have not rallied around or gone into the YMCA?
Mr. Ronald A. Jacks: And it had been subsequently destroyed?
Justice Abe Fortas: No, what had happened in this particular situation?
Mr. Ronald A. Jacks: The record is not clear Your Honor.
Justice Abe Fortas: (Voice Overlap) in the building, weren't there?
Mr. Ronald A. Jacks: I can't speculate what would happen.
There were rioters there, I'm sorry these points are unclear.
In -- the troops --
Justice Abe Fortas: What I mean to say that it isn't very reasonable to suppose that if the army hadn't come, the rioters would have said, “We beg your pardon and backed out of there.”
Mr. Ronald A. Jacks: The troops cleared out the rioters out of the YMCA initially, that's clear.
Justice Abe Fortas: That's the point, isn't it?
Mr. Ronald A. Jacks: Yes, and then they took up positions without occupying the buildings in front of them.
Chief Justice Earl Warren: You don't contend do you Mr. Jacks that when the troops went there, they selected by pre-meditation this two structures saying this are the places where we will defend this whole area.
Now, just let me finish please.
What -- is it the fact that on the contrary, as far as this record shows, they made no decision to go into the buildings.
Either of them until they went in under extremist, with -- when one soldier having been killed, others having been wounded and the rioters were in the building and it was under those compulsions that they went into the building, is -- am I correct on that?
Mr. Ronald A. Jacks: Mr. Chief Justice, I frankly cannot tell what was in the army's mind when they first entered the zone.
Chief Justice Earl Warren: No, no but have you any right to assume under the -- under what is in the record that they did go there with a premeditated intention of using those two places as a rendezvous or as a defense points for that area?
Mr. Ronald A. Jacks: No Your Honor, I can assume one way or another on that.
Chief Justice Earl Warren: But on the contrary, one soldier was killed right at the entrance to the building before they went in.
Others were wounded, the rioters were in the building and they went in both for protection of themselves and I assume for the protection of the building.
Now is there anything wrong with the -- those facts?
Mr. Ronald A. Jacks: I think the sequence is important Mr. Chief Justice.
The rioters were in the building initially when the troops arrived.
The troops cleared them out, took positions in front.
They haven't taken over the buildings yet at that point.
Chief Justice Earl Warren: What would you expect them to do?
Go out into the line of fire then, get some more killed?
Mr. Ronald A. Jacks: No, Your Honor, we have no quarrel with the armies decision to use these buildings and we have no quarrel with the army's decision not to effectively defend them, they just knocked the fire --
Chief Justice Earl Warren: Well, I think you do because you claim they were doing it for a purpose other than to defend the area and defend the people in it.
Mr. Ronald A. Jacks: No, I'm sorry if I have created a misimpression Mr. Chief Justice.
I -- we contend that the army seized the buildings for as Mr. Justice Black indicated for the defense of the entire zone.
And it was a prudent decision to withdraw in there but our point is when our buildings are seized and used for a Governmental purpose, the Government as a whole should pay.
Justice Thurgood Marshall: (Inaudible)
Unknown Speaker: Were there any other --
Mr. Ronald A. Jacks: Excuse me, I --
Justice Thurgood Marshall: (Inaudible) in your mind if the army hadn't shown up, these buildings would still been blown up?
Mr. Ronald A. Jacks: Yes, there is Mr. Chief -- yes, sir.
Unknown Speaker: (Inaudible)
Mr. Ronald A. Jacks: I think again it's the causal relationship between the buildings that the Army were in and the armies were not when read as a whole.
Unknown Speaker: (Inaudible) when the army arrived,(Inaudible)
Mr. Ronald A. Jacks: There was a small -- may I, Mr. Chief Justice?
Chief Justice Earl Warren: Yes, yes, of course.
Mr. Ronald A. Jacks: There was a small fire in the YMCA alone and that was quickly extinguished and that's no part of the total lost by the army.
Chief Justice Earl Warren: What would have happened if the army hadn't put it out with the rioters in there?
Mr. Ronald A. Jacks: If the army hadn't cleared that building?
Chief Justice Earl Warren: Yes, I may hadn't have gone in there to use -- to defend themselves.
What would have happened to that building if they haven't gone in there and done that?
Mr. Ronald A. Jacks: I don't know Mr. Chief Justice except that was not the portion of the YMCA that was destroyed because it was a different, it was a brick construction primarily whereas the portion that was destroyed was wooden.
So it's not clear that the building would necessarily have been lost.
Unknown Speaker: Were any other building was destroyed like this?
Mr. Ronald A. Jacks: Were any other buildings destroyed?
Unknown Speaker: Yeah.
Mr. Ronald A. Jacks: Yes, the buildings by the hash marks, the YMCA, the Masonic Temple and the old commissary building which is here owned by the Government and the sequence of the mob was first at this then at the Masonic Temple and then later at this.
Unknown Speaker: And no troops in the commissary building?
Mr. Ronald A. Jacks: Yes, there were troops in the commissary building.
Unknown Speaker: Were there troops in the sanitation building?
Mr. Ronald A. Jacks: That -- record's unclear on that and I do yield to the Solicitor General in pointing out that was burned and I'm not so sure whether troops surrendered or not.
Justice Potter Stewart: Suppose they're not -- those are government buildings, are they?
Mr. Ronald A. Jacks: Yes, yes, I refer the Court to our appendix in our brief where we show on page 220, Exhibit E10 on the back of the appendix.
Mr. Chief Justice, may I just --
Justice Potter Stewart: Yup, yes.
You're alright to answer.
Mr. Ronald A. Jacks: E10 on page 228, the building, the tall building on the left is the Masonic Temple and the observation point was on top of it and the building on the right is the YMCA and as you can see of to the right the damaged portion of it.
This was taken shortly after the destruction of YMCA.
Unknown Speaker: That's a picture, E10?
Mr. Ronald A. Jacks: Yes, Mr. Chief Justice, E10 and E on the preceding page 219 shows -- those are pictures of the troops inside the YMCA before they were driven out by the fire.
Chief Justice Earl Warren: Very well.
Mr. Ronald A. Jacks: Thank you Mr. Chief Justice.
Chief Justice Earl Warren: What in -- our general nature was done -- was the damage to this building, to either of them?
Mr. Ronald A. Jacks: The YMCA lost a total wing which was in the nature of an auditorium which is primarily of a wood construction.
The main building where the initial fire was Mr. Justice Marshall was not substantially destroyed.
It was the wing to the YMCA that was lost and the Masonic Temple, it was a second and third floor fire damage and interior but the Masonic Temple was made of brick and mortar constructions so it really didn't go despite continues efforts to set it to fire.
Chief Justice Earl Warren: Was that from the Molotov cocktail?
Mr. Ronald A. Jacks: Yes, being -- the records clear on that, being thrown in to the second floor over a prolonged period of time.
Chief Justice Earl Warren: I see.
Mr. Ronald A. Jacks: Thank you.