Sixth Circuit Holds that Some Official Actions Taken in the “Flint Water Crisis” Could Be Constitutional Due Process Violations

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In what the Court of Appeals describes as “the infamous government-created environmental disaster known at the Flint Water Crisis,” a panel of the U.S. Court of Appeals for the Sixth Circuit has ruled that some of the government personnel responsible for this disaster may be liable, under 42 U.S.C. § 1983, for monetary damages based on the Substantive Due Process Clause of the Fourteenth Amendment to the Constitution. The case is Guertin, et al., v. State of Michigan, et al., decided on January 4, 2019.

On April 25, 2014, the City of Flint, MI, facing a financial crisis, agreed to switch its drinking water supply from the water provided by the Detroit Water and Sewerage Department to untreated water available from the Flint River that would be treated in the waterworks owned and operated by the City. However, the City waterworks could not provide the needed treatment, which resulted in the corrosive Flint River water leaching lead out of the old Flint water pipes. Soon thereafter, a public health and environmental crisis enveloped Flint. Many lawsuits have been filed against many defendants, and many civil and criminal investigations have been opened.

In this case, the plaintiffs made claims in federal court actions against numerous state, local and private-actor defendants. The District Court, at the pre-discovery Summary Judgment phase, rejected many of these claims, but also held that some of the complaints plausibly alleged Substantive Due Process claims in that the defendants violated the plaintiffs’ rights to bodily integrity, and accordingly refused to dismiss them.

Over a strong dissent, the panel majority held that the actions of some of the defendants were properly alleged to have violated the Due Process Clause of the Fourteenth Amendment in that the plaintiffs’ rights to “bodily integrity,” which has long been described as a fundament “constitutionally-protected liberty interest.” Moreover, again at this pre-discovery phase, the defendants could not invoke the defense of “qualified immunity” because, in the view of the panel majority, this right was clearly established at the time this conduct took place. Therefore, the claims would not de dismissed before discovery was completed. The dissent argued that the claims in the complaint did not support the case the majority made for not dismissing these clams now.

Coincidentally, the U.S. States Supreme Court, in Per Curiam ruling released on January 7, 2019, in the case of City of Escondido, CA, et al. v. Emmons, reversed a qualified immunity ruling handed by the U.S. Court of Appeals for the Ninth Circuit because that court failed to describe with specificity, the ”clearly established right” whose alleged violation was at the heart of this case.

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