Froomkins question, U.S. Liability for shooting down civilian planes

[Ward Farnsworth]

At 09:54 AM 9/17/2001 -0500, you wrote:

>        In your second question (below), you ask whether there would be
liability
>to the U.S. for a borderline reasonable decision to shoot down a civilian
>plane.  I think there would be a cause of action even if the decision were
>reasonable or fully warranted, although in these days it would probably
>have to fit within the parameters of some federal tort claims statute
>waiving immunity.  I am reasoning from the general common law rule that if
>one seizes a neighbor's blanket to put out a fire threatening one's own
>person or property, one then becomes liable for compensation to the owner
>of the blanket.  Does that sound right?

That's true in cases of private necessity, but the common law rule is
different in cases of "public necessity"; no compensation then is required.
 The usual justification has been that in these circumstances we want the
public official to do what is right for the community at large without
worrying about liability to the individuals affected; since the official's
acts create external benefits for the public, the official is allowed to
externalize the cost of them as well.  See, e.g., United States v. Pacific
R.R., 120 U.S. 227 (1887) ("The destruction or injury of private property
in battle, or in the bombardment of cities and towns, and in many other
ways in the [civil] war, had to be borne by the sufferers alone, as one of
its consequences. Whatever would embarrass or impede the advance of the
enemy, as the breaking up of roads, or the burning of bridges, or would
cripple and defeat him, as destroying his means of subsistence, were
lawfully ordered by the commanding general.  Indeed, it was him imperative
duty to direct their destruction. The necessities of the war called for and
justified this. The safety of the state in such cases overrides all
considerations of private loss. Salus populi is then, in truth, suprema
lex.").

This rule can produce hard results, of course, and naturally there have
been arguments for compensation out of tax revenues in these circumstances.
 But the arguments are at their weakest when the property involved was
likely to be lost in the end anyway due to whatever calamity the government
was trying to contain; that is part of the logic of cases like Surocco v.
Geary, 3 Cal. 70 (1853).  Presumably the same logic would be applied to the
lives of passengers on an airplane being piloted by a terrorist toward the
White House.

_____________________________

Ward Farnsworth
Boston University School of Law
765 Commonwealth Ave.
Boston, MA  02215
Phone:  (617) 353 4008
Fax:  (617) 353 3077