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Court sympathizes with man who lost part of his hearing because of a National Guard howitzer barrage on the Common, but says the government owes him nothing

A federal appeals court ruled yesterday dismissed a California man's suit against the Massachusetts Army National Guard for the hearing he lost while walking on the Common just as Guard howitzers erupted in honor of the Ancient and Honorable Artillery Company's annual June command change in 2015.

The three judges who heard the case at the Court of Appeals for the First Circuit said they really feel for A. Michael Davallou of Los Angeles - who settled out of court with the Ancient and Honorables - but ruled that the government's sovereign immunity trumps his hearing loss in this case. Although a federal law now lets people sue the government for negligence, the law has an exemption for actions done in pursuit of a particular policy, which the court said in this case involved relying on the Ancient and Honorables to handle security and safety for the annual event.

This is a challenging case, and a sad one. Assuming that his allegations are true, Davallou was simply taking a walk through one of our country's most celebrated city parks when, through no fault of his own, he was exposed to noise loud enough to cause permanent hearing damage. Our federal government, however, does not allow itself to be sued for its discretionary decisions, even bad ones, so long as they are reasonably susceptible to policy analysis. And on the facts alleged, additional precautions were not so obviously needed that the decisions to proceed according to tradition and to leave the management of spectators to AHAC fell outside the realm of possible policy decisions.

Davallou was visiting Boston on June 1, 2015, when he took a stroll across the Common. Up by the Soldiers and Sailors Monument, the National Guard had set up howitzers from which blanks were fired to honor the now ceremonial group, which dates back to the Revolution. In 2018, Davallou sued charging the Ancient and Honorables and the National Guard were both negligent, for failing to warn passersby they were about to set off giant explosions in the middle of a crowded park - and failing to ensure people who didn't wish to suffer ear damage were kept a safe distance away.

The court said that, theoretically, Davallou could have overcome the exemption by proving incredibly incompetent disregard for safety, for example, if people were standing right next to the howitzers when they fired despite any Ancient and Honorable efforts to keep them away.

But, the court continued, Davallou did not present such evidence.

We do not know from the complaint where in the park the ceremony was held, how close AHAC allowed the public(including Davallou) to get to the howitzers at the time of the artillery salute, or whether anyone was even aware of Davallou's presence when the howitzers were fired. We also do not know how far from the howitzers the public would have had to stand in order to avoid any substantial risk of hearing loss. Nor is there reason to believe that anyone else had previously suffered injury as a result of AHAC's supervision of the annual June Day ceremony. Without at least some such averments, Davallou has not carried his burden of alleging facts that could support a finding that MANG exhibited such a complete disregard for public safety that its decisions could not have been driven by policy analysis.

PDF icon Complete ruling148.24 KB

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Who will deafen you?

Voting closed 29

If it makes more money for some company to emit noise pollution and there's no regulation on it, what incentive do they have to not do that?

And we can't forget about private citizens who should definitely have the free right to fire their own privately-owned howitzers on their own property at any time they want to, right?

Voting closed 52

So why pay government to do it?

Voting closed 30

Why is the National Guard/Ancient and Honorable firing off cannons in a crowded urban park?

Why can't we change laws that allow government to do whatever harm they want without repercussions? (Qualified immunity for police, for example)

Is this practice still going on each June?


Voting closed 28

It's an annual ceremony that has been happening for the past few hundred years. If you're worried about this, wait until we get to the 4th of July!

Voting closed 41

I have a hard time picturing this lawsuit even being filed without some version of, "the minimal safe distance to fire cannon blanks near people is X, per xyz reference. The AHAC allowed people within Z on the Common on the day in question, so is clearly liable".

Disclaimer that I didn't read the full ruling, bu the summary implies this basic info wasn't part of the suit. Is this total legal incompetence? (Or was the Davalou really, really far away and just hoping to score some bucks?).

If the artillery was fired with people inside what should be a safety zone, that seems pretty negligent. But I'm glad it was tossed without this basic info.

Voting closed 32

Also known as the Budweiser Brigade last in war first at the open bar according to a former state senator.

Voting closed 27