author: Mr. Justice Harlan-

text:
    UNITED STATES v. COVINGTON.
    No. 366.
    Argued December 12, 1968.
    Decided May 19, 1969.

      Philip A. Lacovara argued the cause for the United States, pro hoc vice. With him on the brief were
      Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg.

      William J. Davis, by appointment of the Court, 393 U. S. 973, and Robert J. Haft argued the cause for appellee. Mr. Davis also filed a brief for appellee.
   Mr. Justice Harlan-

delivered the opinion of the Court.

This is a companion case to Leary v. United States, decided today, ante, p. 6. Appellee was charged in a one-count federal indictment in the Southern District of Ohio with having violated 26 U. S. C. § 4744 (a)(1), a part of the Marihuana Tax Act, by obtaining 737.1 grams of marihuana without having paid the transfer tax imposed by 26 U. S. C. § 4741 (a). On appellee’s motion, the District Court dismissed the indictment, holding that under principles established in Marchetti v. United States, 390 U. S. 39 (1968), Grosso v. United States, 390 U. S. 62 (1968), and Haynes v. United States, 390 U. S. 85 (1968), appellee’s privilege against self-incrimination necessarily would provide a complete defense to the prosecution. 282 F. Supp. 886 (1968).

On motion for reconsideration, the Government advanced the argument, more fully described in Leary, supra, at 18-20, that the transfer tax provisions of the Marihuana Tax Act do not compel incriminatory disclosures because, as administratively construed and applied, they allow prepayment of the tax only by persons whose activities are otherwise lawful. The District Court responded by ruling in the alternative that if appellee was not required to pay the tax there could be no basis for the indictment. Appendix 20.

The Government appealed directly to this Court pursuant to 18 U. S. C. § 3731, which authorizes direct appeal from the dismissal of an indictment when the decision is one “sustaining a motion in bar” or “is based upon the invalidity or construction of the statute upon which the indictment or information is founded.” We noted probable jurisdiction, 393 U. S. 910 (1968), and the appeal was argued together with Leary v. United States, supra.

As has been noted, the District Court dismissed the indictment on two alternative grounds. We begin with the second, which was that, assuming the Government’s construction of the Marihuana Tax Act to be correct, the indictment did not charge an offense under that statute. Our decision today in Leary, supra, makes it plain that this was an improper ground of dismissal, for we have held that the Government’s interpretation is incorrect and that the Act requires persons like appellee to prepay the transfer tax. See ante, at 20-26.

The District Court’s other basis for dismissal was that appellee’s Fifth Amendment privilege necessarily would provide a complete defense to the prosecution. We have held today in Leary that the privilege does provide such a defense unless the plea is untimely, the defendant confronted no substantial risk of self-incrimination, or the privilege has been waived. See ante, at 27. See also Marchetti v. United States, 390 U. S. 39, 61 (1968). The questions remain whether such a plea of the privilege may ever justify dismissal of an indictment, and if so whether this is such an instance.

Federal Rule of Criminal Procedure 12 (b)(1) states that: “Any defense or objection which is capable of determination without the trial of the general issue may be raised before trial by motion.” A defense is thus “capable of determination” if trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense. Rule 12 (b) (4) allows the District Court in its discretion to postpone determination of the motion to trial, and permits factual hearings prior to trial if necessary to resolve issues of fact peculiar to the motion.

In many instances, a defense of self-incrimination to a Marihuana Tax Act prosecution will be “capable of determination without the trial of the general issue.” A plea on motion to dismiss the indictment is plainly timely. The question whether the defendant faced a substantial risk of incrimination is usually one of law which may be resolved without reference to the circumstances of the alleged offense. There may more frequently be instances when the issue of waiver will be suitable for trial together with the “general issue.” However, the question whether the privilege has been waived also is one of law, and in most cases there will be no factual dispute about it. Hence, we think that a defendant’s assertion of the privilege should be sufficient to create a legal presumption of nonwaiver, and thus to require dismissal of the indictment, unless the Government can rebut the presumption by showing a need for further factual inquiries.

Application of these principles to this appeal requires affirmance. Appellee asserted in his motion to dismiss that his possession of marihuana was illegal under Ohio law, and that he would have run a substantial risk of incrimination had he complied with the Act. The District Court reached the same conclusion. The Government appears to acknowledge the illegality of appellee’s possession. We conclude that there is no possibility of any factual dispute with regard to the hazard of incrimination.

There is in this brief record no indication that appellee waived his privilege, and the Government has never alleged the existence of a factual controversy on that score. Hence, we think it “just under the circumstances” that the case be finally disposed of at this level. See 28 U. S. C. § 2106; Grosso v. United States, 390 U. S. 62, 71-72 (1968); Haynes v. United States, 390 U. S. 85, 100-101 (1968). Accordingly, the judgment of the District Court is

Affirmed.

Mr. Chief Justice Warren, considering himself bound by the decisions in Marchetti v. United States, 390 U. S. 39 (1968), Grosso v. United States, 390 U. S. 62 (1968), and Haynes v. United States, 390 U. S. 85 (1968), concurs in the judgment of the Court.

Mr. Justice Stewart joins the opinion and judgment of the Court upon the premise stated in his concurring opinion in Leary v. United States, ante, p. 54.

       The relevant provisions of the Marihuana Tax Act are set out and their relationships explained in Leary v. United States, supra, at 14-15.

       If the dismissal rested on the ground that the Fifth Amendment privilege would be a defense, then the decision was one “sustaining a motion in bar.'-’ See United States v. Murdock, 284 U. S. 141 (1931). If the dismissal was based on a finding that under the Government's construction of the Marihuana Tax Act the indictment stated no offense, then the decision necessarily was “based upon the . . . construction of the statute upon which the indictment . . . [was] founded.” See United States v. Borden Co., 308 U. S. 188, 193 (1939).

       Leary was convicted under 26 U. S. C. § 4744 (a) (2), prohibiting transportation or concealment of marihuana by one who acquired it without having paid the transfer tax, while appellee was indicted under 26 U. S. C. §4744 (a)(1), forbidding such acquisition. We think it clear that there is no significant distinction between the statutes for purposes of the Fifth Amendment privilege.

       See 8 J. Moore, Federal Practice ¶ 12.04 (R. Cripes ed. 1968); 2 L. Orfield, Criminal Procedure Under the Federal Rules §§ 12.51-12.60 (1966).

       Cf. Leary v. United States, supra, at 28-29.

       See Brief for the United States 3, n. 1.


source: Caselaw Access Project

author: Mr. Justice Harlan Mr. Justice Black,

license: Public Domain

text:
    IMMIGRATION AND NATURALIZATION SERVICE v. STANISIC.
    No. 297.
    Argued February 25, 1969.
    Decided May 19, 1969.

      Joseph J. Connolly argued the cause for petitioner, pro hac vice. With him on the brief were Solicitor General Griswold, Assistant Attorney General Vinson, and Philip R. Monahan.

      G. Bernard Fedde, by appointment of the Court, 393 U. S. 1010, argued the cause for respondent. With him on the brief was Dorothy McCullough Lee.

      Edward J. Ennis and Melvin L. Wulf filed a brief for the American Civil Litfferties Union as amicus curiae urging affirmance.
   Mr. Justice Harlan

delivered the opinion of the Court.

This case involves the type of hearing to which an alien crewman is entitled on his claim that he would suffer persecution upon deportation to his native land. The Court of Appeals sustained the respondent crewman’s contention that he must be heard by a special inquiry officer in a proceeding conducted under § 242 (b) of the Immigration and Nationality Act. Petitioner, the Immigration and Naturalization Service, argues that respondent’s claim was properly heard and determined by a district director. We brought the case here, 393 U. S. 912 (1968), to resolve the conflict on this score between the decision below and that of the Court of Appeals for the Second Circuit in Kordic v. Esperdy, 386 F. 2d 232 (1967).

I.

Respondent, a national of Yugoslavia, was a crewman aboard the Yugoslav vessel, M/V Sumadija, when it docked at Coos Bay, Oregon, in late December 1964. He requested and was issued a “D-l” conditional landing permit, in accordance with 8 CFR §252.1 (d)(1) and §252 (a)(1) of the Immigration and Nationality Act. Under these provisions, the Service may allow a non-immigrant alien crewman temporary shore leave for

“the period of time (not exceeding twenty-nine days) during which the vessel or aircraft on which he arrived remains in port, if the immigration officer is satisfied that the crewman intends to depart on the vessel or aircraft on which he arrived.” Ibid.

On January 6, 1965, while on shore leave, respondent appeared at the Portland, Oregon, office of the Immigration and Naturalization Service. He claimed that he feared persecution upon return to Yugoslavia, and he flatly stated that he would not return to the M/V Sumadija. On the basis of the latter statement, and in accordance with § 252 (b) of the Act, the District Director revoked respondent’s landing permit. Section 252 (b) provides:

“[A]ny immigration officer may, in his discretion, if he determines that an alien . . . does not intend to depart on the vessel or aircraft which brought him, revoke the conditional permit to land which was granted such crewman under the provisions of subsection (a)(1), take such crewman into custody, and require the master or commanding officer of the vessel or aircraft on which the crewman arrived to receive and detain him on board such vessel or aircraft, if practicable, and such crewman shall be deported from the United States at the expense of the transportation line which brought him to the United States. . . . Nothing in this section shall be construed to require the procedure prescribed in section 242 of this Act to [sic] cases falling within the provisions of this subsection.”

Section 252 (b) makes no express exception for an alien whose deportation would subject him to persecution. However, § 243 (h) permits the Attorney General to withhold the deportation of any alien to a country in which he would be subject to persecution, and analogously, 8 CFR § 253.1 (e) then provided:

“Any alien crewman . . . whose conditional landing permit issued under § 252.1 (d) (1) of this chapter is revoked who alleges that he cannot return to a Communist, Communist-dominated, or Communist-occupied country because of fear of persecution in that country on account of race, religion, or political opinion may be paroled into the United States . . . for the period of time and under the conditions set by the district director having jurisdiction over the area where the alien crewman is located.”

Thus, although respondent was admittedly deportable under the terms of § 252 (b), he was not immediately returned to his vessel. On January 7, he was offered the opportunity to present evidence to the District Director in support of his claim of persecution.

Respondent presented no evidence to the District Director. Rather, he contended that he had not been given sufficient time to prepare for the hearing, and he also argued that he was entitled to have his claim heard by a special inquiry officer in accordance with the general provisions of § 242 (b). The District Director ruled against respondent and, in the absence of any evidence of probable persecution, ordered him returned to the M/V Sumadija, which was then still in port.

Respondent immediately sought relief in the United States District Court for the District of Oregon, which, without opinion, temporarily stayed his deportation and referred the matter back to the District Director for a hearing on the merits of respondent’s claim. On January 25, 1965, after a hearing at which respondent was represented by counsel and presented evidence, the District Director held that respondent “has [not] shown that he would be physically persecuted if he were to return to Yugoslavia.” Appendix 22.

On respondent’s supplemental pleadings, the District Court held that the District Director’s findings were supported by the record. The court rejected respondent’s claim that he was entitled to a § 242 (b) hearing before a special inquiry officer, relying on the last sentence of § 252 (b), which provides: “Nothing in this section shall be construed to require the procedure prescribed in section 242 of this Act to cases falling within the provisions of this subsection.” Vucinic [and Stanisic] v. Immigration Service, 243 F. Supp. 113 (1965).

Respondent did not appeal the District Court’s decision. Instead, in July 1965, he petitioned Congress for a private bill, pending action on which the Service stayed his deportation. Respondent’s effort proved unsuccessful, and on June 21, 1966, the Service ordered him to appear for deportation to Yugoslavia.

The following day, respondent reasserted his claim of persecution before the Service, and requested that the matter be heard by a special inquiry officer pursuant to § 242. The Service, and subsequently the District Court, denied relief, both holding that this issue had previously been determined adversely to respondent.

The Court of Appeals for the Ninth Circuit reversed, Stanisic v. Immigration Service, 393 F. 2d 539 (1968), holding that the matter was not res judicata because of a significant change of circumstances: the District Director’s adverse determination in 1965, and the District Court’s unappealed approval thereof, were based on the unstated premise that the M/V Sumadija was still in port; but now the ship had long since sailed, and respondent still had not been deported. The court held that § 252 (b) only authorized respondent’s “summary deportation aboard the vessel on which he arrived or, within a very limited time after that vessel’s departure, aboard another vessel pursuant to arrangements made before . . . [his] vessel departed.” 393 F. 2d, at 542-543. Since neither of these conditions was met, respondent could no longer be deported pursuant to the District Director’s 1965 determination; he was entitled to a de novo hearing before a special inquiry officer under § 242 (b) of the Act.

II.

At the outset, it is important to recognize the distinction between a determination whether an alien is statutorily deportable — something never contested by respondent — and a determination whether to grant political asylum to an otherwise properly deportable alien.

Section 242 (b) provides a generally applicable procedure “for determining the deportability of an alien . . . .” Section 252 (b) provides a specific procedure for the deportation of alien crewmen holding D-l landing permits. Neither of these sections is concerned with the granting of asylum.

Relief from persecution, on the other hand, is governed by §§212 (d)(5) and 243 (h). The former section authorizes the Attorney General, in his discretion, to

“parole into the United States temporarily under such conditions as he may prescribe for emergent reasons or for reasons deemed strictly in the public interest any alien applying for admission to the United States . . . .”

The latter authorizes the Attorney General

“to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to persecution on account of race, religion, or political opinion and for such period of time as he deems to be necessary for such reason.”

No statute prescribes by what delegate of the Attorney General, or pursuant to what procedure, relief shall be granted under these provisions. By regulation, the decision to grant parole pursuant to § 212 (d) (5) rests with a district director, 8 CFR §§ 212.5 (a), 253.2; and by regulation, the decision to withhold deportation of most aliens pursuant to § 243 (h) is presently made by a special inquiry officer. 8 CFR §§ 242.8 (a), 242.17 (c).

Prior to 1960, no regulation provided relief to an alien crewman whose D-l landing permit was revoked but who claimed that return to his country would subject him to persecution. In Szlajmer v. Esperdy, 188 F. Supp. 491 (1960), a district court held that a crewman in this situation was entitled to be heard. The Service responded by promulgating 8 CFR § 253.1 (e), supra, at 67, the regulation which it applied in the case at bar. 8 CFR § 253.1 (e) is a hybrid. The grounds for relief are, for present purposes, identical to those of § 243 (h) of the Act. However, because the Service adheres to the view that a crewman whose D-l permit has been revoked is not “within the United States” in the technical sense of that phrase, see Leng May Ma v. Barber, 357 U. S. 185 (1958), it terms the relief “parole” into the United States rather than “withholding deportation.” Whatever terminological and conceptual differences may exist, the substance of the relief is the same.

The Service could provide that all persecution claims be heard by a district director, and we see no reason why the Service cannot validly provide that the persecution claim of an alien crewman whose D-l landing permit has been revoked be heard by a district director, whether or not the ship has departed. It might be argued, however, that the Service has not done so; that 8 CFR § 253.1 (e) was designed to govern the determination of persecution claims only when § 252 (b) of the Act governed determinations of deportability; and that if departure of the vessel renders § 252 (b) inapplicable (a suggestion we consider and reject in Part III, below), then 8 CFR § 253.1 (e) likewise becomes inapplicable.

Section 253.1 (e) applies, however, to “[a]ny alien crewman . . . whose conditional landing permit issued under §252.1 (d)(1) [of 8 CFR] ... is revoked” — precisely respondent’s situation — and makes no reference to the departure, vel non, of the vessel. Granting that this regulation and its successor provision are not free from ambiguity, we find it dispositive that the agency responsible for promulgating and administering the regulation has interpreted it to apply even when the vessel has departed. E. g., Kordic v. Esperdy, 386 F. 2d 232 (1967); Glavic v. Beechie, 225 F. Supp. 24 (1963), aff’d, 340 F. 2d 91 (1964). “[T]he ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” Bowles v. Seminole Rock Co., 325 U. S. 410, 414 (1945).

In sum, it is immaterial to the decision in this case whether § 252 (b)’s exception to the § 242 (b) procedure is, or is not, applicable to respondent. These two provisions govern only the revocation of temporary landing permits and the determination of deportability, and we reiterate that respondent does not contest the District Director’s action on either of these scores. These sections do not state who should hear and determine a request for asylum. That is a matter governed by regulation, and under the applicable regulation the respondent received his due.

III.

We do not rest on this ground alone, however. Both the court below and the Court of Appeals for the Second Circuit in Kordic v. Esperdy, 386 F. 2d 232 (1967), assumed that a crewman’s statutory entitlement to a § 242 (b) hearing on his request for asylum was coextensive with his right to a § 242 (b) hearing on his statutory deportability, and the case was argued here primarily on that basis. For the balance of the opinion we thus make, arguendo, the same assumption. We conclude, contrary to the court below, that an alien crewman may properly be deported pursuant to § 252 (b) even after his ship has sailed.

A.

Section 242 (b) of the Immigration and Nationality Act provides a generally applicable administrative procedure pursuant to which a special inquiry officer determines whether an alien is deportable. See nn. 1 and 2, supra.

The history of § 252 (b)’s narrow exception to the § 242 (b) deportation procedure is found in the Report of the Senate Committee on the Judiciary, S. Rep. No. 1515, 81st Cong., 2d Sess., which preceded the enactment of the Immigration and Nationality Act. Alien crewmen had traditionally been granted the privilege of temporary admission or shore leave “because of the necessity of freeing international commerce from unnecessary barriers and considerations of comity with other nations . . . .” Id., at 546. A serious problem was created, however, by alien crewmen who deserted their ships and secreted themselves in the United States. The Committee found that:

“[T]he temporary ‘shore leave’ admission of alien seamen who remain illegally constitutes one of the most important loopholes in our whole system of restriction and control of the entry of aliens into the United States. The efforts to apprehend these alien seamen for deportation are encumbered by many technicalities invoked in behalf of the alien seamen and create conditions incident to enforcement of the laws which have troubled the authorities for many years.” Id., at 550.

To ameliorate this problem, the Committee recommended that:

“Authority should be granted to immigration officers in a case where the alien crewman intends to depart on the same vessel on which he arrived, upon a satisfactory finding that an alien is not a bona fide crewman, to revoke the permission to land temporarily, to take the alien into custody, and to require the master of the vessel on which he arrived to detain him and remove him from the country.” Id., at 558.

Unlike § 242 (b), § 252 (b) does not prescribe the procedures governing the determination of the crewman’s deportability, nor does it confine that determination to a special inquiry officer.

B.

As the Court of Appeals noted, the § 252 (b) procedure governs a narrow range of cases only. It is entirely inapplicable to persons other than alien crewmen. It does not apply to an alien crewman who enters the United States illegally without obtaining any landing permit at all, or who enters on a “D-2” permit allowing him to depart on a different vessel. See n. 4, supra. The Service has held § 252 (b) to be inapplicable even to a crewman issued a D-l permit unless formal revocation— as distinguished from actual deportation — -takes place before his vessel leaves American shores. Matter of M-, 5 I. & N. Dec. 127 (1953); 8 CFR § 252.2; see Cheng Fan Kwok v. Immigration Service, 392 U. S. 206, 207 (1968).

Section 252 (b) most plainly governs the situation in which a D-l landing permit is revoked and the alien crewman is immediately returned to the vessel on which he arrived, which, by hypothesis, is still in a United States port. At the time of revocation, the crewman usually has not traveled far from the port, so the burden of transporting him back to the vessel is small; there is a readily identifiable vessel and place to return him to; and during his brief shore leave, which cannot exceed 29 days, the crewman is unlikely to have established significant personal or business relationships in the United States. In short, the crewman’s deportation may be expedited, with minimum hardship and inconvenience to him, to the transportation company responsible for him, and to the Service.

That this is not the only situation to which the § 252 (b) procedure applies, however, is evident from the language of § 252 (b) itself and the related provisions of § 254. Section 252 (b) requires that where an alien crewman’s landing permit is revoked his transportation company must detain him aboard the vessel on which he arrived, and deport him. Section 254 (a) imposes a fine on the company and ship’s master, inter alia, for failure to detain or deport the crewman “if required to do so by an immigration officer.” However, § 252 (b)’s requirement is modified by the term, “if practicable”; and § 254 (c) eorrelatively provides:

“If the Attorney General finds that deportation of an alien crewman ... on the vessel or aircraft on which he arrived is impracticable or impossible, or would cause undue hardship to such alien crewman, he may cause the alien crewman to be deported from the port of arrival or any other port on another vessel or aircraft of the same transportation line, unless the Attorney General finds this to be impracticable.”

These provisions contemplate that an alien crewman whose temporary landing permit is revoked pursuant to § 252 (b) may be deported on a vessel other than the one on which he arrived. The other vessel should preferably be one owned by the transportation company which brought him to the United States, but if this is not feasible, the Attorney General may order him deported by other means, at the company’s expense.

The Court of Appeals recognized that an alien crewman might properly be deported on a vessel other than the one which brought him. It noted, however, that § 254 (c) holds the owner of that vessel responsible for all of the expenses of his deportation and further provides that the vessel shall not be granted departure clearance until those expenses are paid or their payment is guaranteed. From this it concluded that “the section contemplates that the alternative arrangement shall be made while the vessel upon which the crewman arrived is still in port . . . 393 F. 2d, at 546. Since arrangements for respondent’s deportation had not been made before the M/V Sumadija departed, the § 254 (c), and hence the § 252 (b), procedures were no longer applicable: with the ship’s departure, respondent became entitled to a hearing pursuant to § 242 (b).

We agree that the “clearance” provision of § 254 (c) contemplates that the crewman’s departure on another vessel may sometimes be accomplished or arranged before the vessel that brought him departs. If, however, the crewman’s vessel sails before its owner has .paid or guaranteed the expenses of deportation, the owner’s liability under § 254 (c) is in no way diminished. The Government has merely lost a useful means of compelling payment of costs which may still be collected by other methods. Indeed, as the Court of Appeals itself noted, § 254 (c)’s financial responsibility provision is not limited to instances of deportation pursuant to § 252 (b), but applies to the deportation of alien crewmen in a variety of situations, including those in which a § 242 (b) proceeding has been held, and thus those in which the crewman’s vessel may long since have departed.

Strong policies support the conclusion that a properly commenced § 252 (b) proceeding does not automatically abort upon the departure of the crewman’s vessel. If the crewman whose landing permit has been revoked pursuant to § 252 (b) attacks the district director’s action in a federal court, the court would usually stay his deportation pending at least a preliminary hearing. Even courts with dockets less crowded than those of most of our major port cities may not be able to hear the matter for several days or more, during which time the vessel may often have departed according to schedule. It requires little legal talent, moreover, to manufacture a colorable case for a temporary stay out of whole cloth, and to delay proceedings once in the federal courts. The Ninth Circuit’s construction would, thus, encourage frivolous applications and intentional delays designed to assure that the crewman’s vessel departed before the case was heard. Alternatively, it would so dispose federal judges not to grant stays that persons presenting meritorious applications might be deported without the opportunity to be heard.

We agree with the court below that § 252 (b) is a provision of limited applicability. But we conclude that the court’s construction would restrict its scope to a degree neither intended by Congress nor supported by the language of the Act, and that it would, as a practical matter, render § 252 (b) useless for the very function it was designed to perform.

We hold that an alien crewman whose temporary landing permit is properly revoked pursuant to § 252 (b) does not become entitled to a hearing before a special inquiry officer under § 242 (b) merely because his deportation is not finally arranged or effected when his vessel leaves, and that under these circumstances the Attorney General may provide — as he did in 8 CFR § 253.1 (e), now 8 CFR § 253.1 (f) — that the crewman’s request for political asylum be heard by a district director of the Immigration and Naturalization Service.

IV.

At the time of respondent’s January 1965 hearing before the District Director, § 243 (h) of the Immigration and Nationality Act provided:

“The Attorney General is authorized to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to physical persecution . . .
(Emphasis added.)

By the Act of October 3, 1965, § 11 (f), 79 Stat. 918, this section was amended by substituting for “physical persecution” the phrase “persecution on account of race, religion, or political opinion.” Although 8 CFR § 253.1 (e), the regulation under which respondent’s 1965 hearing was conducted, did not itself contain any restriction to “physical persecution,” it is apparent from the District Director’s findings that he read such a limitation into the regulation.

We believe, therefore, that it is appropriate that respondent be given a new hearing before the District Director under the appropriate standard, and we remand the case for that purpose.

The judgment of the United States Court of Appeals for the Ninth Circuit is reversed and the case is remanded to that court for further proceedings consistent with this opinion.

It is so ordered.

Mr. Justice Black,

with whom Mr. Justice Douglas and Mr. Justice Marshall join,

dissenting.

Two procedures for the deportation of aliens are relevant in this case. The first is set forth in § 242 (b) of the Immigration and Nationality Act, 66 Stat. 209, 8 U. S. C. § 1252 (b), and is the procedure required in most instances when the Government seeks to deport an alien. Under § 242 (b) a number of procedural safeguards are specified to insure that an alien is given the full benefit of a complete and fair hearing before the harsh consequence of deportation can be imposed on him. The second procedure involved in this case is set forth in § 252 (b). It is applicable only under very special circumstances involving alien seamen who enter this country under conditional landing permits. Section 252 (b) provides for a short, summary procedure. Unlike § 242 (b), the first provision mentioned, this second provision does not require that the hearing officer be someone unconnected with the investigation and prosecution of the case. It does not require specific trial safeguards such as the rights to notice, counsel, and cross-examination of witnesses. Indeed, § 252 (b) apparently does not require that the alien be given any hearing at all but would seem to authorize an immigration officer to order immediate arrest and summary deportation on the basis of any information coming to him in any way at any time. The question before the Court is therefore not the apparently insignificant question suggested by the Court’s opinion — namely, whether this alien’s case was properly determined by an official with one title, “District Director,” rather than another title, “special inquiry officer.” Instead, the question is the crucially significant one whether an alien seaman about to be forced to leave the country is entitled under the circumstances of this case to the benefit of safeguards that were carefully provided by Congress to insure greater fairness and reliability in deportation proceedings.

The regulations relied on by the Court in Part II of its opinion do not provide an independent basis for its holding. Among the relevant regulations, 8 CFR § 242.8 (a) applies “[i]n any proceeding conducted under this part,” namely “Part 242 — Proceedings to Determine Deport-ability of Aliens in the United States: Apprehension, Custody, Hearing, and Appeal.” The regulation is thus designed to spell out further the details of proceedings required to be conducted under § 242 of the statute, and this regulation explicitly authorizes the special inquiry officer “to order temporary withholding of deportation pursuant to section 243 (h) of the Act [the political persecution provision].” In contrast, the regulations relied upon by the Court as authorizing a District Director to decide this issue, in particular former 8 CFR § 253.1 (e), apply by their own terms only to the procedure for “parole” of an alien under § 212 (d)(5), a remedy distinct from the withholding of deportation under § 243 (h), and by the Government’s own admission these regulations are applicable only to “requests for asylum made by crewmen against whom proceedings under Section 252 (b) have been instituted.” Brief for Petitioner 37. Thus, the regulations serve only to spell out the procedures to be followed under both § .242 (b) and § 252 (b) and do not even purport to specify when one of these sections rather than the other is in fact applicable. The fact that the Immigration and Naturalization Service has applied the regulation differently does not change this meaning. As the Court concedes, the regulation is “not free from ambiguity,” ante, at 72, and of course the ambiguity in the regulation is precisely the same as the ambiguity in the statutory provision from which the wording of the regulation was drawn. It seems clear that the way in which the Service has applied the regulation has been determined by its interpretation of the statute, an interpretation that is in no way binding on us. Both the statute and the regulation are ambiguous, and there is no doubt in my mind that this ambiguity should be resolved in favor of the alien who is seeking a full and fair hearing. With all due respect, I think the Court’s involved argument based upon the regulations, which goes beyond anything suggested by the Government itself in this case, provides no basis whatsoever for avoiding the fundamental question of statutory interpretation as to which of the two procedures, § 242 (b) or § 252 (b), was required to be followed in this case.

The Government contends that respondent, the alien seaman involved here, could be properly deported under the special summary procedures of § 252 (b) because his conditional landing permit was revoked and because § 252 (b) authorizes summary deportation after this permit is revoked. Respondent, however, argued in the Court of Appeals that he should have been given the benefit of the careful hearing procedures spelled out by Congress in § 242 (b) because the ship on which he came had departed before the decision of the District Director was made, and therefore the only justification for the fast but ordinarily less desirable procedure of § 252 (b) no longer existed. The Court of Appeals held that § 252 (b) proceedings were authorized only prior to the departure of the ship. I agree with the Court of Appeals. As that court noted in its opinion:

“The section [252 (b)] exception [to the general procedural requirements of §242 (b)] is very narrowly drawn. It does not apply to the deportation of crewmen who have ‘jumped ship' and entered the United States illegally, with no permit at all. As noted above, it does not apply to crewmen issued landing permits authorizing them to depart on vessels other than those on which they arrived. It does not apply to crewmen who have overstayed the twenty-nine day leave period without revocation of their landing permits. It does not apply to crewmen who were to leave on the vessel on which they arrived if their vessels have departed before their landing permits are revoked. In all of these situations crewmen may be deported only in accordance with [§ 242 (b)] procedures.” 393 F. 2d 539, 544.

As the legislative history of the Act, quoted in the opinion of the Court of Appeals, shows, the special truncated procedure of § 252 (b) was intended to be used only when the need for speed was truly pressing — when the ship was about to leave port. But the seaman in this case was subjected to this truncated, summary procedure even though his ship had already gone and the need for haste in completing these important legal proceedings no longer existed. There is no reason to suspect that Congress wanted a seaman to be deprived under these circumstances of the vital procedural safeguards so carefully specified in § 242 (b) of the Act.

I would affirm the judgment of the Court of Appeals.

       A special inquiry officer is “any immigration officer who the Attorney General deems specially qualified to conduct specified classes of proceedings ...” Immigration and Nationality Act, § 101 (b)(4), 66 Stat. 171, 8 U. S. C. § 1101 (b)(4). The special inquiry officer has no enforcement duties. He performs “no functions other than the hearing and decision of issues in exclusion and deportation cases, and occasionally in other adjudicative proceedings.” 1 C. Gordon & H. Rosenfield, Immigration Law and Procedure § 5.7b, at 5-49 (1967); see generally id., § 5.7.

       66 Stat. 209, 8 U. S. C. § 1252 (b):
      “A special inquiry officer shall conduct proceedings under this section to determine the deportability of any alien, and shall administer oaths, present and receive evidence, interrogate, examine, and cross-examine the alien or witnesses, and, as authorized by the Attorney General, shall make determinations, including orders of deportation. ... No special inquiry officer shall conduct a proceeding in any case under this section in which he shall have participated in investigative functions or in which he shall have participated (except as provided in this subsection) in prosecuting functions. Proceedings before a special inquiry officer acting under the provisions of this section shall be in accordance with such regulations, not inconsistent with this Act, as the Attorney General shall prescribe. Such regulations shall include requirements that—
      “(1) the alien shall be given notice, reasonable under all the circumstances, of the nature of the charges against him and of the time and place at which the proceedings will be held;
      “ (2) the alien shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose;
      “(3) the alien shall have a reasonable opportunity to examine the evidence against him, to present evidence in his own behalf, and to cross-examine witnesses presented by the Government; and
      “(4) no decision of deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence.
      “The procedure so prescribed shall be the sole and exclusive procedure for determining the deportability of an alien under this section.”

       A district director is the officer in charge of a district office of the Immigration and Naturalization Service. He performs a wide range of functions. See 1 C. Gordon •& H. Rosenfield, Immigration Law and Procedure § 1.9c (1967); 8 CFR § 103.1 (f).

       Section 252 (a), 66 Stat. 220, 8 U. S. C. § 1282 (a) provides:
      “No alien crewman shall be permitted to land temporarily in the United States except as provided in this section .... If an immigration officer finds upon examination that an alien crewman is a nonimmigrant . . . and is otherwise admissible and has agreed to accept such permit, he may, in his discretion, grant the crewman a conditional permit to land temporarily pursuant to regulations prescribed by the Attorney General, subject to revocation in subsequent proceedings as provided in subsection (b), and for a period of time, in any event, not to exceed—
      “(1) the period of time (not exceeding twenty-nine days) during which the vessel or aircraft on which he arrived remains in port, if the immigration officer is satisfied that the crewman intends to depart on the vessel or aircraft on which he arrived; or
      “(2) twenty-nine days, if the immigration officer is satisfied that the crewman intends to depart, within the period for which he is permitted to land, on a vessel or aircraft other than the one on which he arrived.”
      “D-l” and “D-2” landing permits are permits issued pursuant to 8 CFB, §§ 252.1 (d) (1) and 252.1 (d)(2), which implement §§ 252 (a) (1) and 252 (a) (2) of the Act.

       26 Fed. Reg. 11797 (December 8, 1961). Effective March 22, 1967, the section was amended and redesignated § 253.1 (f), 32 Fed. Reg. 4341-4342.

       Because the District Director’s determination was not pursuant to § 242 (b), the District Court had jurisdiction to review his action. See Cheng Fan Kwok v. Immigration Service, 392 U. S. 206 (1968); Stanisic v. Immigration Service, 393 F. 2d 539, 542 (1968); Vucinic [and Stanisic] v. Immigration Service, 243 F. Supp. 113, 115-117 (1965); 5 U. S. C. § 1009.

       Actually, the ship sailed from the United States on or about January 16, 1965, or between the date on which the District Director revoked respondent’s landing permit (January 6, 1965), and the date on which, after a hearing, he denied respondent’s persecution claim (January 25, 1965). This fact was not in the record before the Court of Appeals.

       This was not always so. Until 1962, the final determination was made by a regional commissioner of the Service. 8 CFR §243.3 (b)(2) (1958 rev.); see Foti v. Immigration Service, 375 U. S. 217, 230, n. 16 (1963).

       The only substantial difference is that the regulation, but not the Statute, is limited to Communist-inspired persecution.

       For this reason, we have no occasion to decide whether or not respondent was “within the United States.” Compare Szlajmer v. Esperdy, 188 F. Supp. 491 (1960), with Kordic v. Esperdy, 386 F. 2d 232 (1967), and Glavic v. Beechie, 225 F. Supp. 24 (1963), aff'd, 340 F. 2d 91 (1964). It may further be noted that §243 (h), by its terms, “authorizes” but does not require the consideration of persecution claims.

       This is responsive to the language of §252 (b). Permission to land terminates upon the vessel’s departure, and thereafter there is nothing to “revoke.”

       8 CFR § 252.2 (d) provides that a “crewman granted a conditional permit to land under section 252 (a)(1) of the Act . . . is required to depart with his vessel from its port of arrival and from each other port in the United States to which it thereafter proceeds coastwise without touching at a foreign port or place; however, he may rejoin his vessel at another port in the United States before it touches at a foreign port or place if he has advance written permission from the master or agent to do so.” In the latter case the crewman may journey some distance from the port at which he arrived.

       See infra, this page and at 76.

       66 Stat. 221, 8 U. S. C. § 1284.

       This is doubtless an accommodation made in the light of the transportation company’s liability for the expenses of deportation.

       “All expenses incurred in connection with such deportation, including expenses incurred in transferring an alien crewman from one place in the United States to another under such conditions and safeguards as the Attorney General shall impose, shall be paid by the owner or owners of the vessel or aircraft on which the alien arrived in the United States. The vessel or aircraft on which the alien arrived shall not be granted clearance until such expenses have been paid or their payment guaranteed to the satisfaction of the Attorney General. . . .” § 264 (c).

       Thus, if and when respondent is deported, the owners of the M/V Sumadija will be responsible for the related expenses incurred by the United States.

       And, although we do not decide this question, § 254 (c) would appear to allow the Attorney General to require security for the payment of anticipated expenses of deporting an alien crewman, even though no final arrangements have been made before the vessel that brought him departs.

       See generally 1968 Director of the Administrative Office of the United States Courts Ann. Rep., Tables C, D, and X (1968).

       66 Stat. 214.

       See supra, at 68; Appendix 18-22 passim.

       Respondent contends that his 1965 proceeding was infected with various constitutional errors, including the District Director’s alleged bias and his combination of prosecutorial, investigative, and adjudicatory functions. Because that proceeding is not before us, and because we remand for a new hearing, we have no occasion to consider these arguments, except to note that neither § 252 (b) of the Immigration and Nationality Act nor 8 CFR §253.1 (f), under which respondent will be heard on remand, is unconstitutional on its face. Likewise, it is premature to consider whether, and under what circumstances, an order of deportation might contravene the Protocol and Convention Relating to the Status of Refugees, to which the United States acceded on November 1, 1968. See Dept. State Bull., Vol. LIX, No. 1535, p. 538.

       Section 242 (b) provides as follows:
      “A special inquiry officer shall conduct proceedings under this section to determine the deportability of any alien, and shall administer oaths, present and receive evidence, interrogate, examine, and cross-examine the alien or witnesses, and, as authorized by the Attorney General, shall make determinations, including orders of deportation. ... No special inquiry officer shall conduct a proceeding in any case under this section in which he shall have participated in investigative functions or in which he shall have participated (except as provided in this subsection) in prosecuting functions. Proceedings before a special inquiry officer acting under the provisions of this section shall be in accordance with such regulations, not inconsistent with this Act, as the Attorney General shall prescribe. Such regulations shall include requirements that—
      “(1) the alien shall be given notice, reasonable under all the circumstances, of the nature of the charges against him and of the time and place at which the proceedings will be held;
      “(2) the alien shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose;
      “(3) the alien shall have a reasonable opportunity to examine the evidence against him, to present evidence in his own behalf, and to cross-examine witnesses presented by the Government; and “(4) no decision of deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence.
      “The procedure so prescribed shall be the sole and exclusive procedure for determining the deportability of an alien under this section.”

       Section 252 (b) provides as follows:
      “Pursuant to regulations prescribed by the Attorney General, any immigration officer may, in his discretion, if he determines that an alien is not a bona fide crewman, or does not intend to depart on the vessel or aircraft which brought him, revoke the conditional permit to land which was granted such crewman under the provisions of subsection (a)(1), take such crewman into custody, and require the master or commanding officer of the vessel or aircraft on which the crewman arrived to receive and detain him on board such vessel or aircraft, if practicable, and such crewman shall be deported from the United States at the expense of the transportation line which brought him to the United States. Until such alien is so deported, any expenses of his detention shall be borne by such transportation company. Nothing in this section shall be construed to require the procedure prescribed in section 242 of this Act to cases falling within the provisions of this subsection.”


author: Mr. Justice Brennan Mr. Justice Stewart, Mr. Justice Harlan, Mr. Justice Black,

text:
    NATIONAL BOARD OF YOUNG MEN’S CHRISTIAN ASSNS. et al. v. UNITED STATES.
    No. 517.
    Argued March 3, 1969.
    Decided May 19, 1969.

      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 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 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 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 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, 49 (1960); see also United States v. Sponenbarger, 308 U. S. 256, 266 (1939). 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. And once the troops arrived in the area, their every action was designed to protect the buildings under attack. Eirst, 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.

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.)

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 49; United States v. Sponenbarger, supra, at 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, 378 (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 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.

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 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 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.

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 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. 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 ease 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, 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).

       Jurisdiction in the Court of Claims was based upon 28 U. S. C. § 1491.

       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).

       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.