plausible policy could be behind the government's challenge to conduct in this case and therefore whether the discretionary function exception should apply th chance that in order to make that determination the court should look at the facts on a case by case basis that there's no formulaic approach so in regard to the facts alleged in this case i think it's important to understand that we have pledged that the government knowingly created a risk of serious and permanent injury that such risk would directly and immediately expose the plaintiff and others to serious harm and that the government failed to warn and fail to take any reasonable steps to protect the plaintiff and other bystanders from that harm i submit that i can find no case with that kind of a fact pattern by the government certainly has submitted no kind of case with that kind of fact pattern records help that there could be any plausible policy considerations behind the challenge government actions or inactions i think it's useful perhaps to look at the heart of inverses united states case which is a district court of massachusetts case a bit in that case the court looked at the case of green versus united states which is a th circuit case to differentiate the facts in that case from the case at four in that case and in that in the green case the government through its forest service had start case essentially said that that was a case where the action of the government the governments of created the harm and that that action directly created the injury to the neighboring properties and that it was  surprising that the court in green would find that there was no plausible policy considerations behind that to figure out what the government's decision making and analysis would presumably be in whether it was policy based we sort of need to know what it is you are saying they failed to do or or didn't do that they should've done and the complaint simply says they should have warned the public and i don't really know what and how you mean they should have won the public and then it says they should have established a safety zone and kept people outside sorry didn't interrupt you judge but i think that in terms of warning there could be a variety of warnings some might include putting up signs or temporary signs perhaps a bullhorn for example a megaphone that was used prior to actually firing warning people that the decibel level from the candidate was such that it's essentially could cause permanent serious injury and that you neither should remove yourself from the area or or use some sort of earplugs or something of that nature but something to warn the public that what the government was about to drive minutes remaining could cause permanent serious harm and i think that if we get a chance to try this case i think most people do not understand that the permanent damage that can be done from that kind of event so that it so you should have one of bandage or three should kept the people back a safe distance so that the decibel levels from the howitzers would not be likely to i didn't see you argue that just in your briefs that the district court should have to consider it i think in retrospect judge i think that it doesn't really matter for purposes of this motion whether the pamphlet is in or not i think the  the allegation the complaint should be sufficient to establish that the government knew or should have known that the decibel levels were such as to cause an immediate horror all right so you have withdrawn that argument yes judge have if i could move on to the nd argument which is in regard to the whether in a private actor in like circumstances would be liable under massachusetts law and the court in the supreme court in the indian toing case said that even though a activity may appear to be uniquely governmental the court should look at whether there are private analogs and i submit that there are certain private analogues in this case for example if someone fired a pistol too close to someone's ear and caused acoustic damage then they would clearly be libelous under massachusetts law well perhaps slightly scenario there clearly would be liability for your massachusetts law so what the court did the district court did in this case is instead of looking at a private actors they they essentially looked at a state actor and the and decided that the state actor in such a circumstance would be immunized from liability i think i submit respectfully that that is incorrect that the supreme accurate whether one has to reach this issue is at another matter but i thought the district court's analysis was that there was a specific state statute which protected people and it was not a distinction between tween private people and government action but the fact that there was a specific ethnic massachusetts general law provision private actors would do in like circumstances not what state actors would do in light circumstance and this ok i had said that the state statute was not conclusive in an agony event because it did allow some damages no your honor i'm sorry if i misspoke now what i'm trying to communicate is that the supreme court and in fact this court in the mccluskey vs muller case said that you have to look at the private act or you can put the private actor in the state actor shoes and then determine whether there would be liability in regard to state law in regard to the state actor the olson case  introduce yourself on the records or thank you may please the court thomas cameron on behalf of the defendant the united states of america honors in this case the discretionary function exception has to be interpreted so as to provide immunity to the united states the discretionary function clearly applies in th situation as magistrate judge poll found and the district court adopted their number of policy considerations at issue here and clearly under this circuit's president and the supreme court discretionary and the nd part is where the challenge comes in as to whether there is a policy concern and in the briefing in particular plaintiff has argued that there could not possibly be a policy which justifies the intentional deafening of the public and what plaintiff has done is start reverse order sensually by identifying the harm treating it as inevitable and entirely for cereal and then saying that there could be no possible policy justification which would support a decision to create that harm there are several problems with this the st is a structural problem it flies in the face of the united states or through its act or the massachusetts army national guard knew that the decibel level of the howitzers could cause harm  that is just a bald legal conclusion well isn't it a fact isn't it a factual allegation that we need to assume for twelve be certain purposes is true and if you think in fact they didn't know that standing right next to a howitzer when you fired it could damage your ears you could prove that a summary judgement we surely could prove that summary judgment your honor don't we just assume that that's true it's alleged mr cannon what you had a two prong argument you've wandered into dangerous territory here are getting into when it does seem perfectly clear that probably the guys who were shooting off the howitzer were wearing ear protection because it's pretty clear to everybody why it wasn't clear to the plaintiff may be a different matter but you were starting to make the legal point that it is actually the choice is made by the government that has to be the focus of the discretionary policy choice function  analysis and you say our case law dictates that could you go back to the out yes your honor as plaintiff himself has alleged it was not manning the massachusetts army national guard but the ancient and honorable artillery company that which organized supervised was control the event so there are number of policy choices  which man made or could have made and of course the standard is that the decision making was susceptible to policy analysis well not with ert let's make this a little more concrete describe to me the policy analysis that the governmental actors could have undertaken that would lead them to conclude it's not a good idea before we fire this to just announce to the crowd that you better step back at least thirty feet  to make the warning should we instead make warnings ourselves when a hack is using their own sound system to make all of the warnings should we deploy additional guards people to giving no warning at all and your honor i think that it's a question of the unit of behavior that being considered the policy considerations in discussing or deciding how to handle the whole event the various actors should give it not how much of a morning but what is the policy that supports the conclusion of giving no warning at all the policy would be that  the harm is not so obvious and that in out just that's great but now assume as we were suggesting one might we have to take the complaint as true that there was knowledge that the the st is relying on a hack is a permissible policy decision and we're not talking about a hack and manning making a singular decision such that it's simply will warning be given  requestion of who will give the warning the nd response is that it could have been a decision if we assume for example hypothetically that it was only men doing this and a hack was not involved and man made the decision not think although i've gotten pushback from the panel which i respect i do think that there is a question as to whether the harm was in fact foreseeable let me let me finish up a point understand because you want you want to fight the harm even though it's a the complaint specially talking about as a demonstration for the public on the land mine with the kill zone of fifty three dollars described to me the policy analysis whereby the guard the state actors would set off that landmine without warning people to stand at least fifty feet back i'm just trying to imagine sitting around a conference table and somebody says you know should we want people to see him outside the kill zone and what would be the response that would lead would be equally true you might say in the kill zone example that was a bad decision not to warn people to step back but i think as you were suggesting that probably is not the right way to look at it actually there's just no policy because it's so obvious that any policy ensor would be that that we just say there's not a policy at all and the question is why isn't that same logic equally applicable here we take as true the complaints assertion that the dust bowl of was so high it would cause immediate harm to the air your honor i just i can't get past the notion that that's a a a conclusion of law and more than it is a fact this is an event that's been going on for two hundred and fifty years time met mr mr kanno at i had thought you were going to say it's happened two hundred and fifty years the government's always trusted the ancient and honorable society to do this the location on the boston common i think it was up on hillside it was not an area where people normally are that all of those involved policy choice i thought that that was part of the argument you present it in your war garters this point it's reference where you say well they trust them to make the choice who is the defense what are the other words what is their role in this visa v the us government as the defend i just i'm not quite following that is the is the idea here that the defendant is different than the actor that's firing the howitzer and so the policy choice was was to leave it to them and that if you want to sue them you have to sue them separately or are they the defendant also your honor the ancient and honorable artillery company is a largely a former militia now or ceremonial group they did not fire the howitzers the howitzers were fired by the massachusetts army national guard in support of a hack a hack who was also a defendant and they are not presently before the court they have settled out so we have to use discretion is the discretionary function here not whether to move on but who should give the morning and the defendant the right have here is the government and the government  have a policy reason for leaving the decision to a different defendant that the idea that's one of the ideas or many decisions there were occurred here all of which we say are subject to policy analysis but who w make the warning is absolutely part of  but i thought i thought the allegation was in the complaint that the engine paragraph of the engine or honorable attorney company was acting as employees of the united states of america so we're looking at their conduct which is employee of the united states clearly this you polo was was initially was was man and accurately half of the united states that turned on a complex matter of whether it was a trainee size or not that in fact was so for purposes of the motion to dismiss the government conceded that man was acting on behalf of the united states but let me just just understand suppose we had a case in which there is only employees of united states involved in the event of the firing if the howitzer in that instance the only issue would be i think the issue that we were engaging with you with before which is there is there are some policy for the united states not having giving any warning and you have your answer to that i understand but are you now saying that this case isn't that case because actually this case is a case in which even if the united states had no policy reason for not giving a warning because there was another actor the honorable artillery guard we had a policy of deciding to leave it to them to give the warning so whether they erred or not that's the discretionary function i didn't really pick that up from your grief but is that your argument argument is that it's not a i don't think the focus on is the policy there needs to be a policy rationale of conceivable policy rationales it's a policy laden issue we were debating before whether if the only actors of the united states government there could be conceivably a policy for not having given a warning and we had the exchange i understand your position and i now understand you to be saying even if there is no argument that is persuasive that the governor could offer on that score this case is different because there is also a non governmental employee involved in the event and the choice of have either the employees of united states government or the non governmental employee decide whether to give the war arguably is itself in question and therefore the discretionary function issue kicks in is that an argument the government's making it is you on ok well now what is there an argument in the complaint that the government can't simply delegate that with no thought at all as to whether that decision will be responsibly mate and what would be the policy basis for allowing that to be delegated because then we just have the example with the mind example government puts on the event sponsors the event contracts with an agent to perform the event the agents going to put on a blast of a lamb and the government simply says well we just left it to them i mean if they want to give a warning they cut in the governments off scot free from that that seems surprising to me  well of course and the way you phrase it that would seem surprising but i think if you have multiple actors involved and they have a relationship and response shar responsibility it could be a legitimate decision making process to say that the entity in this case a hack which is running the show on making all the announcements doing the parade  will be the one to determine when how and what type of warning to make it was to be clear which the united states that fired the helicopter yes judge chaotic it was also this one that you said when how and what and all those seem like good ones the only problem is if you also seem to think it's ok to delegate if a warning should be given at all  i think as a hypothetical matter that could at least that could be a matter of discretion and there could be policy based judgement about whether a warning should be given at all based on is that it and sort of the flow of the event so that would be true in the landmine case as well i don't think you can say if it's true in one case it's true in every single case well what's the difference if we accept the allegation that he the united states knew that this could cause serious harm to someone's hearing it's just serious time period versus death threats is that the distinction i think there are more distinctions you've got issues about whether harm could be caused regardless of where somebody is how close they are to the our teachers that sort of like the th of july that that plaintiff himself in his argument why why would that be a situation in which everyone is exposed to hearing loss and therefore suit would lie against the organizers of the event i think you have to look under the your discretionary function analysis on a case by case basis plato has made that argument that's the way the courts have gone i don't think you can make it blanket statement that if in one case you must warn because there's no possible policy justification that means you would have to warn in all cases any further questions lou i would just like to say in regard to the points that judge lynch made that questions about where the cannon are located whether or not the government should have participated that's not the challenge conduct sorry good and now you've made your point i think secondly i would say that i doubt whether there's a plausible or there would ever be a plausible policy consideration behind the government delegating to a rd party safety look at a private person mr china is here making your nd argument we've heard it thank you all right thank you that's all you have make i think the panel thank you that concludes argument in this case attorney china center current attorney can what you should disconnect from the hearing at this time