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.