Judge: Lawsuit can proceed against Flint water contractor

FLINT, Mich. (AP) — A judge on Monday refused to dismiss a lawsuit against an engineering company, which is accused of not doing enough to stop the flow of lead-contaminated water in Flint in 2015.

Four families are suing Veolia North America. The company did not participate in the recent $626 million settlement with Flint residents, mostly paid by the state.

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Flint water crisis settlement claims process begins this week

By Michigan Radio

The Great Lakes News Collaborative includes Bridge Michigan; Circle of Blue; Great Lakes Now at Detroit Public Television; and Michigan Radio, Michigan’s NPR News Leader; who work together to bring audiences news and information about the impact of climate change, pollution, and aging infrastructure on the Great Lakes and drinking water.

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Arbitrator: Official wrongly fired in Flint water scandal

By Ed White, Associated Press

DETROIT (AP) — The only Michigan official fired in the Flint water catastrophe likely was a “public scapegoat” who lost her job because of politics, an arbitrator said in ordering $191,880 in back pay and other compensation.

It’s a remarkable victory for Liane Shekter Smith, who served as head of the state’s drinking water office when Flint’s water system was contaminated with lead.

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Source: Michigan reaches $600M deal in Flint water crisis

Michigan will pay $600 million to compensate Flint residents whose health was damaged by lead-tainted drinking water after the city heeded state regulators’ advice not to treat it properly, an attorney involved in the negotiations told The Associated Press on Wednesday.

Details will be released later this week, according to the attorney, who requested anonymity because he was not authorized to speak about it ahead of an official announcement.

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In a win for Flint residents and environmental justice, the federal Court of Appeals for the Sixth Circuit has ruled that the actions of government – notably MDEQ officials and state-appointed emergency managers – “shocked the conscience” and may violate citizens’ right to bodily integrity as guaranteed by the Due Process Clause of the Constitution’s Fourteenth Amendment. The court’s decision - Guertin v. Michigan, 912 F. 3d 907 (6th Cir. 2019) - reasons that water is not only a necessity for life but a public good, and citizens rely on their government to provide water in good faith. Government officials knowingly delivered unsafe water to residents in Flint for over a year, denying mounting evidence of the danger, and misleading the public and federal officials. While the court cautioned that it was not creating a new constitutional right to water service or a completely pollution-free environment, it establishes a precedent to hold government officials accountable for subjecting citizens to unwarranted dangerous pollution based on violating their right to bodily integrity. The court concluded:

In providing a tainted life-necessity and falsely assuring the public about its potability, government officials stripped the very essence of personhood from those who consumed the water. They also caused parents to strip their children of their own personhood. If ever there was an egregious violation of the right to bodily integrity, this is the case; the affront to human dignity in this case is compelling, and defendants’ conduct is so contrary to fundamental notions of liberty and so lacking of any redeeming social value, that no rational individual could believe their conduct is constitutionally permissible under the Due Process Clause. We therefore agree with the district court that plaintiffs have properly pled a violation of the right to bodily integrity against Howard Croft, Darnell Earley, Gerald Ambrose, Liane Shekter-Smith, Stephen Busch, Michael Prysby, and Bradley Wurfel, and that the right was clearly established at the time of their conduct.

Below is an edited excerpt, with most citations and quotations omitted for ease of reading (and the full opinion with dissent here).

Guertin v. Michigan, 912 F. 3d 907 (6th Cir. 2019)

Griffin, Circuit Judge

This case arises out of the infamous government-created environmental disaster commonly known as the Flint Water Crisis. As a cost-saving measure until a new water authority was to become operational, public officials switched the City of Flint municipal water supply from the Detroit Water and Sewerage Department (DWSD) to the Flint River to be processed by an outdated and previously mothballed water treatment plant. With the approval of State of Michigan regulators and a professional engineering firm, on April 25, 2014, the City began dispensing drinking water to its customers without adding chemicals to counter the river water’s known corrosivity.

The harmful effects were as swift as they were severe. Within days, residents complained of foul smelling and tasting water. Within weeks, some residents’ hair began to fall out and their skin developed rashes. And within a year, there were positive tests for E. coli, a spike in deaths from Legionnaires’ disease, and reports of dangerously high blood-lead levels in Flint children. All of this resulted because the river water was 19 times more corrosive than the water pumped from Lake Huron by the DWSD, and because, without corrosion-control treatment, lead leached out of the lead-based service lines at alarming rates and found its way to the homes of Flint’s residents. The crisis was predictable, and preventable. See generally Mason v. Lockwood, Andrews & Newnam, P.C., 842 F.3d 383, 387 (6th Cir. 2016).

I.

Plaintiffs Shari Guertin, her minor child E.B., and Diogenes Muse-Cleveland claim personal injuries and damages from drinking and bathing in the lead-contaminated water. *** The plaintiffs’ remaining claim is that defendants violated their right to bodily integrity as guaranteed by the Substantive Due Process Clause of the Fourteenth Amendment. They bring this claim pursuant to 42 U.S.C. § 1983, under which an individual may bring a private cause of action against anyone who, under color of state law, deprives a person of rights, privileges, or immunities secured by the Constitution or conferred by federal statute.

II.

On this appeal, we decide [a] substantial issue of public importance: did plaintiffs plead a plausible Fourteenth Amendment Due Process violation of their right to bodily integrity and was such a constitutional right clearly established when the defendants acted? We join the Michigan Court of Appeals, Mays v. Snyder, 916 N.W.2d 227 (Mich. Ct. App. 2018) [and citing numerous other lower federal and state courts] in holding that plaintiffs have pled a plausible Due Process violation of bodily integrity regarding some of the defendants.

***

IV.

[The government defendants sought to dismiss the plaintiffs’ claims based on the doctrine of qualified immunity.] Qualified immunity shields public officials from undue interference with their duties and from potentially disabling threats of liability. This immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions, protecting all but the plainly incompetent or those who knowingly violate the law. A plaintiff bears the burden of showing that a defendant is not entitled to qualified immunity. To do so, a plaintiff must show (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct. See Ashcroft v. al-Kidd, 563 U.S. 731 (2011).

V.

The Fourteenth Amendment of the United States Constitution provides that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.” Flowing directly from the protections enshrined in the Magna Carta, the Due Process Clause significantly restricts government action—its core is “preventing government from abusing its power, or employing it as an instrument of oppression.” Collins v. City of Harker Heights, 503 U.S. 115, 126 (1992). Although the Due Process Clause provides no guarantee of certain minimal levels of safety and security, it expressly prohibits deprivations by the State itself. That is, “its purpose is to protect the people from the State, not to ensure that the State protects them from each other.” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 195-96 (1989).

There are procedural and substantive due process components. Only the latter component is at issue here. Substantive due process bars certain government actions regardless of the fairness of the procedures used to implement them. It “specifically protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997). The liberty interests secured by the Due Process Clause include the right generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. These common-law privileges, the Supreme Court has held, specifically embrace the right to bodily integrity (see id), and the right not to be subjected to arbitrary and capricious government action that shocks the conscience and violates the decencies of civilized conduct.

***

A.

Plaintiffs’ complaint deals with the scope of the right to bodily integrity, an indispensable right recognized at common law as the “right to be free from ... unjustified intrusions on personal security” and “encompassing” freedom from bodily restraint and punishment.” Ingraham v. Wright, 430 U.S. 651, 673–74 (1977); see also Davis v. Hubbard, 506 F.Supp. 915, 930 (N.D. Ohio 1980) (“In the history of the common law, there is perhaps no right which is older than a person’s right to be free from unwarranted personal contact.”)

This common law right is first among equals. As the Supreme Court has said: “No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” Union Pac. Ry. Co. v. Botsford, 141 U.S. 250 (1891). Absent lawful authority, invasion of one’s body “is an indignity, an assault, and a trespass” prohibited at common law. Id. On this basis, we have concluded the right to personal security and to bodily integrity bears an impressive constitutional pedigree.

This right is fundamental where the magnitude of the liberty deprivation that the abuse inflicts upon the victim strips the very essence of personhood. “We have never retreated from our recognition that any compelled intrusion into the human body implicates significant, constitutionally protected interests.” Missouri v. McNeely, 569 U.S. 141 (2013). And more broadly, it is beyond debate that an individual’s interest in preserving her life is one of constitutional dimension.

Bodily integrity cases usually arise in the context of government-imposed punishment or physical restraint, but that is far from a categorical rule. Instead, the central tenet of the Supreme Court’s vast bodily integrity jurisprudence is balancing an individual’s common law right to informed consent with tenable state interests, regardless of the manner in which the government intrudes upon an individual’s body. Thus, to show that the government has violated one’s right to bodily integrity, a plaintiff need not establish any constitutional significance to the means by which the harm occurs. That is because individuals possess a constitutional right to be free from forcible intrusions on their bodies against their will, absent a compelling state interest.

***

This nonconsensual intrusion vis-à-vis government interest line of cases has played out time and time again in the lower courts. The numerous cases involving government experiments on unknowing and unwilling patients provide a strong analogy to the Flint Water Crisis. Involuntarily subjecting nonconsenting individuals to foreign substances with no known therapeutic value—often under false pretenses and with deceptive practices hiding the nature of the interference—is a classic example of invading the core of the bodily integrity protection.

In re Cincinnati Radiation Litigation, 874 F.Supp. 796 (S.D. Ohio 1995), is a good example. Funded by the Department of Defense, government officials at the University of Cincinnati subjected cancer patients to radiation doses consistent with those expected to be inflicted upon military personnel during a nuclear war. The patients were in “reasonably good clinical condition,” and were “primarily indigent, poorly educated, and of lower than average intelligence.” At no time did the government actors disclose the risks associated with the massive radiation doses or obtain consent to irradiate the patients at those levels for those purposes—they instead told the patients that the radiation was treatment for their cancer. Summarizing the caselaw, the Cincinnati Radiation court easily concluded that “the right to be free of state-sponsored invasion of a person’s bodily integrity is protected by the Fourteenth Amendment guarantee of due process.” The involuntary and misleading nature of the intrusions was key. The patients could not “be said to exercise that degree of free will that is essential to the notion of voluntariness” because-

“the choice Plaintiffs would have been forced to make was one of life or death. If the Constitution protects personal autonomy in making certain types of important decisions, the decision whether to participate in the Human Radiation Experiments was one that each individual Plaintiff was entitled to make freely and with full knowledge of the purpose and attendant circumstances involved. Without actually seizing the Plaintiffs and forcing them to submit to these experiments, the agents of the state accomplished the same feat through canard and deception.”

We find the Cincinnati Radiation matter especially analogous. In both instances, individuals engaged in voluntary actions that they believed would sustain life, and instead received substances detrimental to their health. In both instances, government officials engaged in conduct designed to deceive the scope of the bodily invasion. And in both instances, grievous harm occurred. Based on the facts and principles set forth in the above cases, we therefore agree with the district court that a government actor violates individuals’ right to bodily integrity by knowingly and intentionally introducing life-threatening substances into individuals without their consent, especially when such substances have zero therapeutic benefit.

Finally, we note what plaintiffs’ claim does not entail. There is, of course, “‘no fundamental right to water service.’” In re City of Detroit, 841 F.3d 684 (6th Cir. 2016). Moreover, the Constitution does not guarantee a right to live in a contaminant-free, healthy environment. To this end, several defendants and the dissent cite a California state case involving residents complaining about a city fluoridating its drinking water supply. See Coshow v. City of Escondido, 132 Cal. App. 4th 687 (2005). However, Coshow is particularly inapposite because it shows the push-and-pulls of competing policy decisions that generally fall outside the scope of a violation of the right to bodily integrity—there, the government publicly introduced fluoride into the water system, a chemical frequently added to public water systems to prevent tooth decay. Here, defendants make no contention that causing lead to enter Flint’s drinking water was for the public good or that they provided notice to Flint residents about the lead-laced water. Therefore, “Coshow did not address whether substantive due-process protections might be implicated in the case of intentional introduction of known contaminants by governmental officials, and its reasoning is inapplicable here.” Mays v. Snyder, 916 N.W.2d at 262 n.16.

B.

Upon a showing of a deprivation of a constitutionally protected liberty interest, a plaintiff must show how the government’s discretionary conduct that deprived that interest was constitutionally repugnant. We use the “shocks the conscience” rubric to evaluate intrusions into a person’s right to bodily integrity. Thus, a plaintiff must show as a predicate the deprivation of a liberty or property interest and conscience-shocking conduct.

“[T]he measure of what is conscience shocking is no calibrated yard stick,” nor is it “subject to mechanical application.” County of Sacramento v. Lewis, 523 U.S. 833 (1998). Several tropes help explain its meaning, with the focus again being on “executive abuse of power.” Due-process-violative conduct shocks the conscience, infringes upon the decencies of civilized conduct, is so brutal and so offensive to human dignity, and interferes with rights implicit in the concept of ordered liberty. These are subjective standards, to be sure, but they make clear that the ‘shocks the conscience’ standard is not a font of tort law, but is instead a way to conceptualize the sort of egregious behavior that rises to the level of a substantive due process violation. Stated differently, the shocks-the-conscience test is the way in which courts prevent transforming run-of-the-mill tort claims into violations of constitutional guarantees.

[The Supreme Court’s holding in County of Sacramento v. Lewis] highlighted how the time to deliberate in one circumstance may dictate liability in one situation but not another because as the very term ‘deliberate indifference’ implies, the standard is sensibly employed only when actual deliberation is practical. Take a classic deliberate indifference situation—when, for example, a prison official has time to make unhurried judgments, with the chance for repeated reflection, largely uncomplicated by the pulls of competing obligations. It is in these kinds of situations where we would expect plaintiffs asserting substantive due process claims based on deliberate indifference to be most successful.

The critical question in determining the appropriate standard of culpability is whether the circumstances allowed the state actors time to fully consider the potential consequences of their conduct. Time is … one element [in considering] the entirety of the situation— the type of harm, the level of risk of the harm occurring, and the time available to consider the risk of harm are all necessary factors in determining whether an official was deliberately indifferent. The key variable is whether actual deliberation is practical, not whether the claimant was in state custody. This is because custodial settings are not the only situations in which officials may have a reasonable opportunity to deliberate.

We have identified a multitude of considerations when evaluating an official’s alleged arbitrariness in the constitutional sense, including the time for deliberation, the nature of the relationship between the government and the plaintiff, and whether a legitimate government purpose motivated the official’s act. *** Simply making bad choices does not rise to the level of deliberate indifference. Rather, for or us to find deliberate indifference, . . . we must find not only that the governmental actor chose to act (or failed to act) despite a subjective awareness of substantial risk of serious injury, but we also must make some assessment that he did not act in furtherance of a countervailing governmental purpose that justified taking that risk. “Many, if not most, governmental policy choices come with risks attached to both of the competing options, and yet it is not a tort for government to govern by picking one option over another.” Schroeder v. City of Fort Thomas, 412 F.3d 724 (2005). Essentially, the more voluntary the plaintiff-government relationship, or the less time the state actor has to deliberate, or the greater the extent to which the state actor is pursuing a legitimate end, the less arbitrary we should deem a bodily injury or death caused by the state actor.We agree with the district court that these considerations weigh in favor of finding that the generally alleged conduct was so egregious that it can be said to be “arbitrary in the constitutional sense.”

Extensive time to deliberate. There is no doubt that the lead-contamination inflicted upon the people of Flint was a predictable harm striking at the core of plaintiffs’ bodily integrity, and this known risk cannot be excused on the basis of split-second decision making. All of the alleged decisions by defendants leading up to and during the crisis took place over a series of days, weeks, months, and years, and did not arise out of time-is-of-the-essence necessity. Their unhurried judgments were replete with opportunities for repeated reflection, largely uncomplicated by the pulls of competing obligations, and thus militate in plaintiffs’ favor. In the Court’s words, because “[w]hen such extended opportunities to do better are teamed with protracted failure even to care, indifference is truly shocking.” Lewis, 523 U.S. at 853.

Involuntary relationship. In addition to the time to deliberate, the relationship between the City of Flint and its residents matters. At the outset, we acknowledge we deal here not with the typical line of voluntary/involuntary relationships that normally occur in our caselaw. Instead, two factors weigh toward an involuntary relationship. First, Flint’s transmission of drinking water to its residents is mandatory on both ends—Flint’s Charter and Code of Ordinances mandate that the city supply water to its residents, see, e.g., Flint City Charter § 4203(A), Flint Code of Ord. § 46-7, and as the City expressly argued below, “residents are legally required to take and pay for the water, unless they use an approved spring or well.” See Flint Code of Ord. §§ 46-50(b), 46-51, 46-52. Second, various defendants’ assurances of the water’s potability hid the risks, turning residents’ voluntary consumption of a substance vital to subsistence into an involuntary and unknowing act of self-contamination. As the district court aptly reasoned, “misleading Flint’s residents as to the water’s safety—so that they would continue to drink the water and Flint could continue to draw water from the Flint River—is no different than the forced, involuntary invasions of bodily integrity that the Supreme Court has deemed unconstitutional.”

No legitimate government purpose. The decision to temporarily switch Flint’s water source was an economic one and there is no doubt that reducing cost is a legitimate government purpose. When a government acts for the benefit of the public, normally its deliberate choice does not shock the conscience. There is a caveat to this general rule—acting merely upon a government interest does not remove an actor’s decision from the realm of unconstitutional arbitrariness. Here, jealously guarding the public’s purse cannot, under any circumstances, justify the yearlong contamination of an entire community. In the words of the Michigan Court of Appeals, “we can conceive of no legitimate governmental objective for this violation of plaintiffs’ bodily integrity.” Mays, 916 N.W.2d at 262.

There is no allegation defendants intended to harm Flint residents. Accordingly, the question is whether defendants acted with deliberate indifference in the constitutional sense, which we have equated with subjective recklessness. This is a particularly high hurdle, for plaintiffs must show the government officials knew of facts from which they could infer a ‘substantial risk of serious harm,’ that they did infer it, and that they acted with indifference ‘toward the individual’s rights. The deliberate-indifference standard requires an assessment of each defendant’s alleged actions individually. Our focus is on each individual defendant’s conduct, their “subjective awareness of substantial risk of serious injury,” and whether their actions were made “in furtherance of a countervailing governmental purpose that justified taking that risk.”

C.

Flint defendants (Earley, Ambrose, and Croft). We begin with one of the two sets of defendants who were instrumental in creating the crisis—defendants Croft [Flint Department of Public Works director], Emergency Manager Earley, and Emergency Manager Ambrose [Emergency Managers appointed by the state to administer the city of Flint]. These individuals were among the chief architects of Flint’s decision to switch water sources and then use a plant they knew was not ready to safely process the water, especially in light of the Flint River’s known environmental issues and the problems associated with lead exposure. Earley, for example, “forced the transition through” despite knowing how important it was that “the treatment plant be ready to treat Flint River water” and that “the treatment plant was not ready.” Similarly, Croft permitted the water’s flow despite knowing “that the City’s water treatment plant was unprepared to adequately provide safe drinking water to Flint’s residents.” The Flint defendants also made numerous statements to the public proclaiming that the water was safe to drink. Defendant Ambrose’s decisions to twice turn down opportunities to reconnect to the DWSD after he knew of the significant problems with the water were especially egregious. These and other asserted actions plausibly allege deliberate indifference and plain incompetence not warranting qualified immunity. To the extent these defendants claim “mistakes in judgment” because they reasonably relied upon the opinions of Michigan Department of Environmental Quality (MDEQ) employees and professional engineering firms, those are facts to be fleshed out during discovery and are not appropriate to resolve at the motion-to-dismiss posture. *** One can place a benign construction on the factual allegations and draw inferences so that the facts amount to a negligent mismanagement of priorities and risks; but the allegations also support a reasonable inference that Earley prioritized a drive to cut costs with deliberate and reckless indifference to the likely results, and Ambrose refused to reconnect to Detroit water despite knowing the substantial risk to Flint residents’ health.

For now, we conclude that plaintiffs’ complaint plausibly alleges a constitutional violation as to these defendants.

DEQ Defendants (Busch, Shekter-Smith, Prysby, Wurfel, and Wyant). The MDEQ defendants were the other set of individuals front and center during the crisis. The allegations against defendants Busch, Shekter-Smith, Prysby, and Wurfel are numerous and substantial. These MDEQ defendants played a pivotal role in authorizing Flint to use its ill-prepared water treatment plant to distribute drinking water from a river they knew was rife with public-health-compromising complications. Furthermore, when faced with the consequences of their actions, they falsely assured the public that the water was safe and attempted to refute assertions to the contrary. A few poignant examples further illustrate their culpability:

  • Less than two weeks before the switch to Flint water, the Flint water treatment plant’s water quality supervisor wrote to Prysby and Busch that he had inadequate staff and resources to properly monitor the water. As a result, he informed Prysby and Busch, “I do not anticipate giving the OK to begin sending water out anytime soon. If water is distributed from this plant in the next couple of weeks, it will be against my direction.” Busch and Prysby did not act on this warning. Instead, a few days later, Busch drafted a talking point for a Flint community meeting that highlighted that MDEQ was “satisfied with the City’s ability to treat water from the Flint River.”
  • After General Motors very publicly stopped using Flint River water at its engine plant for fear of corrosion, Prysby made sure the department’s approach was to spin this symptom as not related to public health instead of investigating the underlying problem. He “stressed the importance of not branding Flint’s water as ‘corrosive’ from a public health standpoint simply because it does not meet a manufacturing facility’s limit for production.”
  • On February 27, 2015, Busch lied when he told “the EPA on behalf of MDEQ that the Flint Water Treatment Plant had an optimized corrosion control program.” However, Busch knew “[b]y no later than April 2015, but likely much earlier . . . that no corrosion control was being used in Flint following the switch to the Flint River as the water source.”
  • In the midst of the crisis and with full knowledge that Flint’s water distribution system was corroded and presented significant health issues, Shekter-Smith callously excused Flint’s lack of drinking water compliance as “circumstances happen.” And after the EPA pressed MDEQ officials for MDEQ’s failure to optimize corrosion controls in July 2015, she requested the EPA nonetheless cover her department’s decision by “indicating in writing . . . its concurrence that the city is in compliance with the lead and copper rule….” Doing so, she wrote, “would help distinguish between [MDEQ’s] goals to address important public health issues separately from the compliance requirements of the actual rule which we believe have been and continue to be met in the city of Flint.” In other words, “technical compliance” trumped addressing an urgent and catastrophic public health disaster.
  • On numerous occasions, defendant Wurfel, the public face of the crisis, announced the water was safe to drink, and demeaned, belittled, and aggressively dampened attempts by the scientific community to challenge the government’s assertions that Flint did not have a problem with its drinking water. And he suggested that concern regarding the water was at best a short-term problem—that by the time the City had completed its lead-testing, the City would already be drawing from a different water source altogether.
  • As with the Flint defendants, these MDEQ defendants created the Flint Water environmental disaster and then intentionally attempted to cover-up their grievous decision. Their actions shock our conscience. It is alleged that these defendants acted with deliberate indifference to the plaintiffs’ constitutional right to bodily integrity and at a minimum were plainly incompetent.

To the extent these defendants made “honest mistakes in judgment”—in law or fact—in interpreting and applying the Lead and Copper Rule, that defense is again best reserved for after discovery. This Rule generally requires public water systems to monitor lead and copper levels and to treat certain elevated levels in accordance with the regulation. 40 C.F.R. § 141.80 et. seq. More specifically, it requires a “large system,” like Flint, to optimize corrosion control treatment before distribution of water to the public. § 141.81(a)(1). However, MDEQ employees did not follow this dictate; instead, under a “flawed interpretation” of the Rule, they drew up a yearlong sampling program post-switch (broken up into two, six-month monitoring periods) to determine whether corrosion controls were required. In their view, this after-the-fact-wait-and-see approach to corrosion controls allegedly fell within minimum compliance levels of the Rule. Plaintiffs’ view is bleaker. They assert MDEQ viewed Flint residents as “guinea pigs” for a year to test lead-compliance theories that were unsupported and unauthorized by the EPA just to pass time until water began flowing from a new water authority. To be sure, plaintiffs’ view must be based on reasonable inferences from factual allegations. The district court correctly found that it is.

By the same token, we reject Wurfel’s reliance upon two Second Circuit cases involving statements by public officials about the air-quality in lower Manhattan in the days following the September 11 terrorist attacks, chiefly for the reason that those matters involved the balancing of competing governmental interests—restoring public services and protecting public health—during a time-sensitive environmental emergency. We have no such similar facts here on the face of plaintiffs’ complaint.

***

VI.

***

Given the unique circumstances of this case, defendants argue we should defer to the “breathing room” qualified immunity provides and hold that the invasion of plaintiffs’ right to bodily integrity via life-threatening substances with no therapeutic benefit introduced into individuals without their consent was not clearly established before the officials engaged in their respective conduct. The dissent likewise suggests that “plaintiffs must be able to ‘identify a case with a similar fact pattern’ to this one ‘that would have given ‘fair and clear warning to officers’ about what the law requires.’” But the Supreme Court has made clear that officials can still be on notice that their conduct violates established law even in novel factual circumstances. For the reasons that follow, we decline to erect the suggested “absolute barrier to recovering damages against an individual government actor.”

The lack of a comparable government-created public health disaster precedent does not grant defendants a qualified immunity shield. Rather, it showcases the grievousness of their alleged conduct: “The easiest cases don’t even arise,” United States v. Lanier, 520 U.S. 259 (1997); there is no need that the very action in question have previously been held unlawful because the unconstitutionality of outrageous conduct obviously will be unconstitutional and some personal liberties are so fundamental to human dignity as to need no specific explication in our Constitution in order to ensure their protection against government invasion.

Knowing the Flint River water was unsafe for public use, distributing it without taking steps to counter its problems, and assuring the public in the meantime that it was safe is conduct that would alert a reasonable person to the likelihood of personal liability. As set forth above, taking affirmative steps to systematically contaminate a community through its public water supply with deliberate indifference is a government invasion of the highest magnitude. Any reasonable official should have known that doing so constitutes conscience-shocking conduct prohibited by the substantive due process clause. These actions violate the heartland of the constitutional guarantee to the right of bodily integrity, and the obvious cruelty inherent in defendants’ conduct should have been enough to forewarn defendants.

Furthermore, the long line of Supreme Court cases discussed above all build on each other from one foundation: an individual’s right to bodily integrity is sacred, founded upon informed consent, and may be invaded only upon a showing of a government interest. The Court could not have been clearer in Washington v. Harper, 494 U.S. 210 (1990) when it stated that “[t]he forcible injection of medication into a nonconsenting person’s body represents a substantial interference with that person’s liberty.” Here we have an even more dramatic invasion, for at least in Harper the state forced medication—something needed to improve or sustain life—into its citizens; here, government officials caused Flint residents to consume a toxin with no known benefit, did so without telling them, and made affirmative representations that the water was safe to drink.

***

In providing a tainted life-necessity and falsely assuring the public about its potability, government officials stripped the very essence of personhood from those who consumed the water. They also caused parents to strip their children of their own personhood. If ever there was an egregious violation of the right to bodily integrity, this is the case; the affront to human dignity in this case is compelling, and defendants’ conduct is so contrary to fundamental notions of liberty and so lacking of any redeeming social value, that no rational individual could believe their conduct is constitutionally permissible under the Due Process Clause. We therefore agree with the district court that plaintiffs have properly pled a violation of the right to bodily integrity against Howard Croft, Darnell Earley, Gerald Ambrose, Liane Shekter-Smith, Stephen Busch, Michael Prysby, and Bradley Wurfel, and that the right was clearly established at the time of their conduct.

Should discovery shed further light on the reasons behind their actions (as but one example, a governmental interest that trumps plaintiffs’ right to bodily integrity), they are free to raise the qualified immunity defense again at the summary judgment stage.

[Discussion of Flint’s status as an arm of the state while under emergency management and partial dissent by Judge McKeague omitted.]

Original Article

Great Lakes Law

Great Lakes Law

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Noah Hall

A federal appeals court has allowed two lawsuits by Flint residents against state officials for Constitutional violations arising from the Flint water crisis to go forward, giving victims a big legal win with even bigger implications. In Boler v. Earley and Mays v. Snyder, 865 F.3d 391 (6th Cir. 2017), cert. denied, 583 U.S. __ (2018), the court held that alleged violations of substantive due process and equal protection could be brought in federal court against the state-appointed emergency manager (defendant Darnell Earley), the governor (defendant Rick Snyder), and over a dozen other public officials. The district court below had dismissed the Constitutional claims on various jurisdictional and legal grounds, ruling that plaintiffs were limited to remedies under the federal Safe Drinking Water Act. But a unanimous panel of the Sixth Circuit Court of Appeals reversed the lower court and rejected most of the state defendants’ arguments, most importantly holding that the federal Safe Drinking Water Act does not preempt Constitutional claims.

The plaintiffs in the two lawsuits (which were consolidated for appeal) brought suits pursuant to 42 U.S.C. § 1983 (which provides a federal cause of action for damages for violations of the Constitution) against the public officials for harm from lead poisoning, water contamination, and lack of access to safe water. The claims included: (1) violation of substantive due process through state-created danger; (2) violation of substantive due process through an invasion of the fundamental right to bodily integrity; (3) intentional race discrimination in violation of the Equal Protection Clause; and (4) impermissible wealth-based discrimination in violation of the Equal Protection Clause.

Before addressing the legal merits, the federal appeals court first summarized how state government, from the legislature and governor on down, created the Flint water crisis. The court especially focused on the passage (and re-passage) of the emergency manager law, the lack of democratic local government in Flint, and the decision to put Flint on untreated water from the Flint River while surrounding (wealthier) townships stayed with the treated Detroit water system.

The court then held that the federal Safe Drinking Water Act was not a substitute for protecting Constitutional rights that may have been violated in Flint. The SDWA directs the EPA to establish standards and compliance procedures and allows citizens to seek injunctions against violations. But the SDWA does not guard against unequal protection under those standards or deprivations of rights regardless of whether a system is deemed to be in compliance. The court first explained how an equal protection violation could arise under the SDWA:

“A government entity could provide some customers with water that meets the requirements of SDWA standards, but that is nonetheless dirtier, smellier, or of demonstrably poorer quality than water provided to other customers.… Even though not violating the SDWA, these situations could create an equal protection issue, particularly if such distinction were based on intentional discrimination or lacked a rational basis.”

The court then similarly laid out the basis for a substantive due process violation under the SDWA:

“Likewise, a state actor’s deliberately indifferent action concerning contaminants in public water systems, which created a special danger to a plaintiff that the state knew or should have known about, could violate the Due Process Clause without also violating the SDWA, if the hypothetical contaminants did not exceed the statutory maximums or were not regulated by it.”

The cases are now remanded back to district court (Eastern District of Michigan) where the plaintiffs can try their claims for Constitutional violations. Thanks to the many advocates for tireless work, from lead plaintiff Melissa Mays to the crew of dedicated Michigan civil rights lawyers and Michigan Law Professor Samuel Bagenstos. Looking beyond these two cases, the court’s decision may clear the way for more Constitutional litigation against environmental injustice at the hands of state actors. (See this recent article, After Flint: Environmental Justice as Equal Protection, by Northwestern University law professors David Dana and Deborah Tuerkheimer.) The Flint water crisis has shown the tremendous inequality and inequity within environmental law but this win could give citizens a new tool to protect their health and rights.

Special thanks to GLELC Fellow Erin Mette for research on this case.

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Great Lakes Law

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Noah Hall