Sixth Circuit Will Not Hear Flint Water Case En Banc

(AP Photo/Carlos Osorio)

CHICAGO (CN) – Flint officials still face liability over the Michigan city’s contaminated-water crisis after the full Sixth Circuit ruled Thursday not to vacate a panel decision denying immunity from claims brought by a family who drank lead-laced water, but five conservative judges wrote separately to voice their disagreement.

In January, a divided three-judge panel of the Sixth Circuit refused to grant Flint officials immunity for their actions that poisoned the city’s water with lead and left residents – to this day – without safe drinking water.

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

Flint officials petitioned the full Sixth Circuit for review of that decision en banc, but a majority of the 16-judge court ruled Thursday not to take up the case.

The order was issued without an accompanying opinion, but in a rare move, perhaps reflecting the publicity surrounding the case, several judges wrote and/or joined various concurrences and dissents.

U.S. Circuit Judge Julia Gibbons warned against “judicial overreach,” and said any determination about the city officials’ intent must wait for discovery.

“Both the majority and dissent rushed to articulate a standard before the facts had been fully discovered,” Gibbons said, articulating a critique of the panel’s decision in a concurrence joined by U.S. Circuit Judge Jane Branstetter Stranch.

U.S. Circuit Judge Jeffrey Sutton also urged caution in a separate concurrence, and went so far as to say, “I would have written the majority opinion in a different key,” given that Flint residents can only prevail in this case if they can show city officials made an intentional or reckless effort to poison the city’s water supply – gross negligence is not enough.

“Carefully tailored and prompt discovery should answer whether the intentional and reckless poisoning allegations hold up. If not, this case needs to return to the court of public opinion, where one suspects it should have remained all along,” Sutton wrote. His opinion was joined by U.S. Circuit Judge John Bush.

But five judges dissented from the court’s decision not to rehear the case en banc, including four new judges appointed to the bench by President Donald Trump.

The dissent, written by U.S. Circuit Judge Raymond Kethledge, a George W. Bush appointee, said the panel’s decision appeals to the “crush of popular opinion” by “expanding substantive due process to reach claims based on negligence rather than intent.”

U.S. Circuit Judges Amul Thapar, Joan Larsen, John Nalbandian and Eric Murphy – all Trump appointees – joined the dissent.

“What the court first describes as a ‘constitutional right

[of persons]

to be free from forcible intrusions on their bodies against their will,’ on the next page becomes a sweeping right of ‘nonconsenting individuals’ to be free of ‘foreign substances with no known therapeutic value’ – in short, a constitutional right to be free of unwanted substances,” Kethledge wrote.

He continued, “That putative right is violated every day, indeed every time that virtually any of us takes a breath. But more to the point, the majority’s formulation elides what the prior cases require – namely that the officer’s injection or intrusion of the ‘foreign substance’ into the plaintiff’s body be intentional.”

This case was filed by Shari Guertin against former Governor 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, 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 the state and its former governor, ruling that none of the state employees named in the lawsuit could be sued in their official capacities.

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 cannot be held liable.

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