A federal appeals court has affirmed claims that several government employees linked to the Flint water crisis violated the constitutional rights of the city’s residents, emphasizing that the conduct of some Michigan state officials “shock our conscience.”
The Jan. 4 decision by the U.S. Court of Appeals for the Sixth Circuit is the first by a federal appeals court to address a substantive claim brought in several of the water crisis cases, including a pending class action: whether government officials violated Flint, Michigan, residents’ substantive due process rights to bodily integrity under the 14th Amendment.
“Involuntarily subjecting nonconsenting individuals to foreign substances with no known therapeutic value—often under false pretenses and with deceptive practices hiding the nature of the interference—is a classic example of invading the core of the bodily integrity protection,” wrote Judge Richard Griffin, for the majority. “If ever there was an egregious violation of the right to bodily integrity, this is the case.”
The majority was particularly harsh on officials with the city of Flint and the Michigan Department of Environmental Quality, who were responsible for the drinking water contamination but attempted to cover up their actions.
“Their actions shock our conscious,” Griffin wrote. “It is alleged that these defendants acted with deliberate indifference to the plaintiffs’ constitutional right to bodily integrity and at a minimum were plainly incompetent.”
Those government officials, the majority found, were not entitled to qualified immunity defenses. The decision also affirmed that the city of Flint wasn’t entitled to sovereign immunity under the 11th Amendment because, as its lawyers argued, it was acting as an “arm of the state.”
In a partial dissent, Judge David McKeague found there was no due process right against exposure to contaminated water and that the claims against government officials, who relied on scientific experts to make their decisions, were more akin to negligence than “conscience-shocking conduct.” He also called the majority’s opinion “new and unchartered territory” for due process protections.
“The majority tells a story of intentional poisoning based on a grossly exaggerated version of plaintiffs’ allegations,” he wrote. “The complaint tells an entirely different story. It is a story of a series of discrete and discretionary decisions made by a variety of policy and regulatory officials who were acting on the best information available to them at the time. In retrospect, the information turned out to be grievously wrong.”
Paul Geske of McGuire Law in Chicago, who represented the plaintiffs in the case, said the majority “condemns in the strongest possible terms the actions of those who plaintiffs claim are responsible for the crisis.”
“By rejecting the defense of qualified immunity for a number of city and state officials, and rejecting the City of Flint’s claim to absolute immunity under the Eleventh Amendment, the Sixth Circuit has paved the way toward accountability and justice for the people of Flint,” he wrote in an email.
Ted Leopold, co-lead counsel for the plaintiffs in the consolidated class action over the Flint water crisis, said the decision, which came in an individual lawsuit, brought Flint residents “one step closer to justice.”
“It has certainly a significant impact on the class action case because it all deals with the same issues of qualified immunity and constitutional bodily integrity matters, all of which are part of the class action,” said Leopold of Cohen Milstein Sellers & Toll in Palm Beach Gardens, Florida. “The Sixth Circuit ruled that both of those issues can go forward.”
In 2014, state officials decided to shift the city’s water supply from Lake Huron to the Flint River, despite studies warning the corrosive nature of the river could risk lead getting into the drinking water.
Lawsuits spurred from the crisis have faced jurisdictional and procedural hurdles, and the Sixth Circuit’s rulings in Flint water cases so far have focused on those issues.
On Aug. 1, U.S. District Judge Judith Levy in the Eastern District of Michigan dismissed some of the claims and defendants, including the state of Michigan and former Gov. Rick Snyder, from the consolidated class action, brought on behalf of Flint residents with health problems and businesses with diminished property values. But Levy kept several former state officials and the city of Flint in the case.
Levy also ruled in an individual case before the Sixth Circuit, brought by two Flint residents, Shari Guertin and Diagenes Muse-Cleveland. In 2017, Levy dismissed most of the case, but the city of Flint and about a dozen individual defendants appealed her decision as to the bodily integrity claims against them.
The Sixth Circuit’s majority affirmed her order for the most part but disagreed with her decision not to dismiss some of the defendants, including Michigan Department of Health and Human Services employees Nancy Peeler and Robert Scott.
Peeler’s attorney, Michael Cafferty, of Cafferty & Associates in Detroit, praised the decision for concluding that the plaintiffs had “failed to establish any valid legal claims” against his client.
“Ms. Peeler has been an extremely conscientious and competent MDHHS employee,” he wrote in an email. “Ms. Peeler is glad, but not surprised, that the exhaustive decision of the Court of Appeal unanimously determined that she should not have been included in this lawsuit.”
Mary Chartier, a partner at Chartier & Nyamfukudza in East Lansing, Michigan, represented Scott.
“We’re pleased with the court’s well-reasoned and thoughtful analysis on this issue, and we believe the right outcome was reached,” she wrote in an email.
Lawyers for the other defendants did not respond to requests for comment.