State and Local Officials Denied Immunity in Flint Water Suit

The Flint Water Plant water tower in Michigan in 2016. (AP Photo/Carlos Osorio, File)

(CN) — A Sixth Circuit panel on Friday upheld a federal judge’s denial of immunity to the city of Flint, Michigan Governor Gretchen Whitmer, and numerous other local and state officials in a class action brought by residents affected by the Flint water crisis.

The officials claimed they were entitled to immunity on the residents’ substantive due process claim for violation of bodily integrity, but the appeals court disagreed.

Its decision comes less than a month after arguments were held via teleconference because of courthouse closures related to the Covid-19 pandemic.

The panel relied heavily on the court’s 2019 decision in another Flint water case, Guertin v. Michigan, and held the officials’ response and coverup to water contamination “is egregious” and “shocks the conscience.”

The Guertin case was decided by a separate panel and was not heard by the full court, despite a petition filed by Flint officials.

Several city officials argued they were entitled to qualified immunity because their actions were based solely on “professional opinions” provided by state officials and engineering firms, but U.S. Circuit Judge Karen Moore cited Guertin and told the officials those arguments could wait.

“We have already held,” Moore said, “that, ‘to the extent these defendants claim ‘mistakes in judgment’ because they reasonably replied upon the opinions of Michigan Department of Environmental Quality (MDEQ) employees and professional engineering firms, those are facts to be fleshed out during discovery and are not appropriate to resolve at the motion-to-dismiss posture.’”

The MDEQ officials named in the suit also tried to pass the buck, and claimed their failure to use an erosion control standard in Flint was based on a “mistaken, but reasonable, interpretation of the EPA Lead and Copper Rule.”

Moore, an appointee of Bill Clinton, was unimpressed.

“At this stage,” she wrote, “we must accept the reasonable inference from plaintiffs’ allegations that, whatever the MDEQ’s purported justifications for its actions, it rushed the switch to the Flint River knowing it would deliver contaminated water and that the decision-makers cared only about cost, not water quality.

“Their purported defense also does not explain why they failed to treat the water after they came under the EPA’s scrutiny, or why they lied to the EPA.”

Former Governor Rick Snyder was also named in the suit in his individual capacity, and was lambasted by the court for his role in the cover up and failure to provide any adequate solutions for the people of Flint.

“The allegations demonstrate,” Moore wrote, “that Snyder personally understood not just from public reports, but from his own staff, that Flint residents were being poisoned.

“Plaintiffs’ allegations demonstrate that Snyder downplayed the problem and delayed taking action to protect the people of Flint, first by refusing to switch back to the [previous water source], then by failing to supply Flint residents with protective supplies, and finally by waiting three months after the city connected back to the [previous supply] to declare a state of emergency.”

The panel also rejected the City of Flint and current Governor Gretchen Whitmer’s pleas for sovereign immunity under the Eleventh Amendment, and once again cited Guertin in its reasoning.

As in Guertin, the court ruled that because the city was not acting as a state entity while under “state emergency management,” it does not qualify for sovereign immunity.

As for Whitmer, she argued that because the conduct alleged by the residents occurred under the watch of her predecessor, she cannot be substituted as a party.

The panel disagreed, and found that because the damage to the water supply is ongoing and “will leave lasting developmental effects,” Whitmer’s actions as governor are irrelevant and do not qualify her for immunity.

The only official who successfully overturned his denial of immunity was former State Treasurer Andy Dillon.

Dillon was recently dismissed from another federal case regarding the crisis because it was discovered he was not in office at the time the city switched its water supply to the Flint River, and so the panel remanded the claims against him to the federal court to determine whether he should be dismissed.

U.S. Circuit Judge Eric Murphy, an appointee of Donald Trump, dissented from the majority opinion in one key respect, and wrote that the claims against former Governor Snyder should have been dismissed on the grounds of qualified immunity.

Murphy said Snyder’s “sign-off” on a plan that included upgrades to the system that would use the Flint River to supply water to Flint residents “is nothing like the conscience-shocking actions allegedly taken by the ‘chief architects’ of the transition.”

According to Murphy, Snyder’s response and alleged coverup also fell short of conscience-shocking behavior because the complaint raises only “generic claims of deception against his ‘Administration.’”

Senior U.S. Circuit Judge Gilbert Merritt Jr., a Jimmy Carter appointee, rounded out the panel.

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