Sixth Circuit Denies Immunity to Flint Officials in Water Crisis

The Flint River in the 1970s (U.S. Army Corps of Engineers Digital Visual Library)

CHICAGO (CN) – A divided Sixth Circuit denied Flint city officials immunity on a bodily integrity claim brought by a mother and child who drank the city’s lead-contaminated water.

Shari Guertin sued former Gov. Rick Snyder, Michigan, Flint and various other officials on behalf of herself and her minor daughter for injuries sustained after they drank and bathed in lead-tainted water provided by the central Michigan city.

City officials switched the municipal water supply from the Detroit Water and Sewerage Department (DWSD) to the Flint River, without adding chemicals to counter the Flint River water’s known corrosivity.

Because the river water was 19 times more corrosive that water pumped from Lake Huron by DWSD, it leached lead from the city’s pipes into the water supply, resulting in dangerously high blood-lead levels in Flint children.

While a majority of the claims brought by Guertin were dismissed by the federal court, U.S. District Judge Judith 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 former Gov. Snyder and the state, ruling that none of the state employees named in the suit could be sued in their official capacities.

Flint and state environmental officials appealed to the Sixth Circuit, and argued in June that they are entitled to governmental immunity.

Attorney John Bursch, on behalf of the individual defendants, 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.

But the Sixth Circuit rejected this argument Friday, and refused to grant Flint officials immunity for their actions.

“Defendants created the Flint Water environmental disaster and then intentionally attempted to cover-up their grievous decision. Their actions shock our conscience,” Circuit Judge Richard Griffin said, writing for the panel’s 2-1 majority.

Taking the complaint’s allegations as true, the court said individual defendants played a pivotal role in authorizing Flint to change its water source despite being aware of the public health concerns.

Plaintiffs “assert MDEQ [Michigan Department of Environmental Quality] 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,” Judge Griffin said. “To be sure, plaintiffs’ view must be based on reasonable inferences from factual allegations. The district court correctly found that it is.”

Griffin’s opinion was joined by Judge Helene White.

Judge David McKeague partially dissented, saying the majority opinion “tells a story of intentional poisoning based on a grossly exaggerated version of plaintiffs’ allegations.”

He said that the focus in the case should not rest on whether the officials’ actions caused harm – in hindsight, they clearly did.

“The question is, rather, whether any official’s discrete decisions or statements, which in any way caused or contributed to the Crisis, violated a substantive due process right to bodily integrity,” McKeague said. “By answering that question with, ‘obviously, yes,’ the majority extends the protections of substantive due process into new and uncharted territory and holds government officials liable for conduct they could not possibly have known was prohibited by the Constitution. In doing so, the majority unfairly denies defendants protection from suit under the doctrine of qualified immunity.”

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