CINCINNATI (CN) – The city of Flint and several government officials argued before the Sixth Circuit on Wednesday for immunity on a bodily integrity claim brought by a mother and child who drank the city’s lead-contaminated water.
Shari Guertin sued the Michigan, Governor Rick Snyder, Flint and various other officials on behalf of herself and her minor daughter, E.B., for injuries allegedly sustained after they drank and bathed in lead-tainted water provided by the central Michigan city.
While a majority of the claims brought by Guertin were dismissed by the district court, U.S. District Judge Judith E. Levy allowed her bodily integrity claim to proceed, after she determined the city’s conduct was “so egregious as to shock the conscience.”
Levy dismissed claims against Governor Snyder and the state, ruling that none of the state employees named in the suit could be sued in their official capacities.
Flint and its officials appealed to the Sixth Circuit, and argued on Wednesday that they are entitled to governmental immunity.
Attorney John Bursch argued on behalf of the individual defendants, and told the panel that the Flint water crisis does not afford a constitutional right to bodily integrity.
Bursch described city officials as “trying to do the best they could” in a rapidly changing situation, and that because regulators were “not acting with malice or force,” they could not be held liable.
The attorney also pointed out that no court has ever recognized a right to bodily integrity in the context of public drinking water.
Michigan Assistant Attorney General Zach Larsen argued on behalf of the state’s Department of Health and Human Services.
Larsen told the panel his client was also entitled to immunity on all claims, and that the failure to publicize concerns about the drinking water does not allow for a constitutional claim.
U.S. Circuit Judge Helene White asked about allegedly false statements made by the department.
Larsen responded that the only reference made by Guertin involved an internal email distributed just two days before the department made a public statement about the contamination.
Attorney Paul Geske represented Guertin and her daughter, and faced a barrage of questions from the panel of judges.
Geske described the conduct of Flint and its officials as a series of “disastrous and callously indifferent decisions” that lasted two and a half years.
He said the officials “sat on” evidence of the dangers of using the Flint River as a water supply source, and that they failed to act even after General Motors stopped using the water because it was too corrosive to metal automobile parts.
U.S. Circuit Judge David McKeague told Geske to be more specific about his claims, and to delineate the duties of each defendant once lead was discovered in the water.
McKeague also mentioned Geske’s lawsuits against several engineering firms that allegedly provided inaccurate information about Flint’s treatment plant and its ability to nullify the effects of lead and other contaminants in the water.
He asked Geske how the Flint defendants could be deliberately indifferent to citizens’ constitutional rights if they were only acting on poor advice given by the engineering firms.
Geske stumbled over his answer, but told the panel that “notwithstanding the advice, [the defendants] had subjective knowledge” of the water’s contamination.
In his conclusion, he told the panel that Flint officials’ failure to immediately address concerns about the water constitutes arbitrary and deliberately indifferent behavior that shocks the conscience.
U.S. Circuit Judge David Allen Griffin was also on the panel.
No timetable has been set for the court’s decision.