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(CN) — Elected and appointed officials in Jackson, Mississippi, weren’t just negligent when they learned about dangerously elevated levels of lead in the municipal water supply, attorney Mark P. Chalos told the full Fifth Circuit on Tuesday.
For roughly a decade, as lead levels increased due to aging infrastructure and mismanagement, Chalos argued, officials knew of the related public health “catastrophe” but kept the public largely in the dark — delaying public notice, downplaying the danger and making decisions that worsened the problem.
“This is a case about government officials who, as we’ve alleged, through a lengthy series of bad conduct, poisoned their own residents’ water with lead,” Chalos opened. “They piped that water to their residents’ homes, and then they lied about the safety of the water, repeatedly and falsely stating that it was safe to drink.”
Chalos represents a group of plaintiffs who claim the city’s lack of a competent response damaged their health. A rare en banc hearing of the court was granted after the plaintiffs appealed a three-judge panel ruling last November that allowed their core constitutional claim against the city to proceed but shielded individual officials with qualified immunity.
Chalos emphasized the timeline, noting the conduct by city officials “played out over months and years, giving the defendants more than ample time for deliberation. This isn’t the same as second-guessing of split-second life and death decisions by police officers,” he said.
He pointed to specific lies the plaintiffs say officials told, such as Public Works Director Kishia Powell telling residents “this is not a situation where you have to stop drinking the water” and Mayor Tony Yarber declaring “we’re not Flint,” referring to the Michigan city with a similar crisis.
The plaintiffs intend to revive their claims against the officials, stating a substantive due process violation of the right to bodily integrity under the 14th Amendment. Chalos argued the right is “long established” and rooted in Supreme Court precedent protecting against unwanted intrusions into the body.
“The 14th Amendment’s prohibition on state deprivations of life and liberty speaks directly and unambiguously to the conduct alleged here,” he said.
Several judges pressed hard on where the constitutional line is drawn.
“How low does the pH have to drop before the conduct of the city is conscience-shocking?” one judge asked. “How high does the lead concentration have to rise?”
Chalos replied that it is not a simple numerical test.
“It’s the whole tapestry of things … a course of conduct,” he said. “They knew, and they continued to choose to do things that actually made it worse.”
Representing the city and officials, attorney Clarence Webster pushed back, arguing the plaintiffs cherry-picked statements from news articles attached to their own complaint. When read in full context, those articles show the city issued notices about lead exceedances and provided flushing guidance.
Webster said the city’s actions had a “rational basis” and warned that turning every infrastructure failure into a federal case would transform substantive due process into a “font for tort law.”
On the key “shock the conscience” issue, Webster maintained that plaintiffs failed to plead facts showing the city piped poisoned water from the treatment plant or lied without any rational basis.
“Taking plaintiffs’ complaint as true, there is no factual dispute. … The court is in a position to decide whether the underlying conduct is egregious,” he said.
Plaintiffs and amicus attorney Erin Murphy, for the Campaign for Lead Safety, also urged the court to formally recognize the “state-created danger” theory, already accepted in 10 other circuits. Murphy argued it flows from the text of a statute for the deprivation of rights, rather than as a freestanding substantive due process right. Webster countered that statute does not create new rights and that the plaintiffs failed to plead the required elements, including danger specific to them and third-party harm.
Much of the court’s questioning focused on whether the case should survive the city’s motion for judgment on the pleadings. The plaintiffs stressed the case is still in the earliest stage, and no discovery has occurred.
On rebuttal, Chalos said courts must accept well-pleaded facts as true and draw inferences in the plaintiffs’ favor, citing precedent that allows cases to proceed even when defendants claim rational explanations.
Following the 2022 failure of the water system, the U.S. Department of Justice and EPA sued the city of Jackson, with a federal court later placing the water and sewer systems under a court-appointed receivership.
As of today, the system remains under federal court jurisdiction while a new Mississippi state law creating a new water authority to take over has been temporarily blocked by the federal judge while its legality and potential interference with the court order are reviewed. The receiver is expected to step down sometime in 2027.
The court took the case under submission.
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