City officials in Michigan seek immunity against contaminated water lawsuit

(CN) — A Sixth Circuit panel held oral arguments on Wednesday to determine if officials of a Michigan city have immunity against a toxic water lawsuit.

Benton Harbor Mayor Marcus Muhammad and the city’s former water plant manager, Michael O’Malley, appeared before a three-judge panel in their appeal to overturn a lower court’s ruling denying them immunity from the lawsuit.

In 2018, lab results showed Benton Harbor’s water contained toxic levels of lead, which the Environmental Protection Agency warns can cause serious health problems, especially in children.

Detroit-based attorney Thomas Rheaume of Bodman PLC defended Muhammad and O’Malley, arguing that the defendants took sufficient action to warn residents that the city’s water contained toxic levels of lead.

“I don’t know what more you would want from your government,” Rheaume said. “Could they solve the problem immediately? No they couldn’t, it’s a community with limited resources.”

Residents filed the original federal class action in 2021, claiming that the "deliberate indifference" and inaction of the city and its officials led to physical injuries and emotional harm.

"Deliberate indifference" is the important factor for immunity in this case, because city officials could be immune to the supposed constitutional violations if they are shown to have acted in good faith.

U.S. Circuit Judge Karen Moore questioned Nashville-based attorney Mark Chalos of Lieff Cabraser about the substance of the residents' claims.

“The crux of the problem here is how detailed was, or should your complaint have been, to show that O’Malley and Muhammad, who are the two individuals in front of us, violated substantive due process rights?” Moore said, who was appointed by Bill Clinton.

Chalos said the residents are not required to meet a specifically heightened level of evidence for their claims to go forward, and later answered that discovery has not begun.

U.S. Circuit Judge Rachel Bloomekatz, a Joe Biden appointee, continued to hammer down on the question of evidence.

She asked if the suit could be sustained on accusations that the city officials knew treatment methods like flushing water pipes were inefficient.

“In terms of your complaint, are you just allowed to say, 'Well they lied about that, that they knew that that was not good enough'?” Bloomekatz said. “Do you need to put a little bit more meat on those bones before it hits plausibility?”

Chalos mentioned the city of Flint, Michigan, which also had a toxic water crisis involving lead that ended in a $600 million payout from the state.

“This is occurring in 2018, the Flint water crisis had been going on for three years by this point. It was in the national news. This doesn’t happen in a vacuum, and its not the first time a municipality is facing a water crisis,” Chalos said. “They knew the problem with lead, they knew that lead was incredibly dangerous especially for children, and they knew that flushing is not sufficient to make it safe.”

In his closing statements, Rheaume pushed back on that characterization of events, saying that the city acted within the required guidelines and that indifference cannot be shown.

“At best, plaintiffs have stated a negligence claim,” he said.

According to a Michigan government website, the water in Benton Harbor has been safe since January 2022.

Joining the panel was U.S. Circuit Court Judge John Nalbandian, a Donald Trump appointee.

No timetable was issued for a ruling in the case.

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