SHARI GUERTIN, individually and as next friend of her child, E.B., a minor; DIOGENES MUSE-CLEVELAND v. STATE OF MICHIGAN, et al.
Nos. 17-1698/1699/1745/1752/1769
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
January 4, 2019
File Name: 19a0003p.06
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b)
Appeal from the United States District Court for the Eastern District of Michigan at Ann Arbor. No. 5:16-cv-12412—Judith E. Levy, District Judge.
Argued: June 6, 2018
Decided and Filed: January 4, 2019
Before: McKEAGUE, GRIFFIN, and WHITE, Circuit Judges.
COUNSEL
ARGUED: Zachary C. Larsen, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellants in 17-1698. Frederick A. Berg, Jr., BUTZEL LONG, P.C., Detroit, Michigan, for Appellants in 17-1699. John J. Bursch, BURSCH LAW PLLC, Caledonia, Michigan, for Appellants in 17-1745. Michael S. Cafferty, Detroit, Michigan, for Appellant in 17-1752. Kurt Krause, CHARTIER & NYAMFUKUDZA, P.L.C., East Lansing, Michigan, for Appellant in 17-1769. Paul T. Geske, MCGUIRE LAW, P.C., Chicago, Illinois, for Appellees. Samuel R. Bagenstos, Ann Arbor, Michigan, for Amicus Curiae.
GRIFFIN, J., delivered the opinion of the court in which WHITE, J., joined, and McKEAGUE, J., joined in part. McKEAGUE, J. (pp. 40–70), delivered a separate opinion concurring in part and dissenting in part.
OPINION
GRIFFIN, Circuit Judge.
This case arises out of the infamous government-created environmental disaster commonly known as the Flint Water Crisis. As a cost-saving measure until a new water authority was to become operational, public officials switched the City of Flint municipal water supply from the Detroit Water and Sewerage Department (DWSD) to the Flint River to be processed by an outdated and previously mothballed water treatment plant. With the approval of State of Michigan regulators and a professional engineering firm, on April 25, 2014, the City began dispensing drinking water to its customers without adding chemicals to counter the river water‘s known corrosivity.
I.
Plaintiffs Shari Guertin, her minor child E.B., and Diogenes Muse-Cleveland claim personal injuries and damages from drinking and bathing in the lead-contaminated water. Plaintiffs’ complaint asserted various claims against numerous state, city, and private-actor defendants. In response to motions to dismiss, the district court granted in part and denied in part the motions. In its written order, the court dismissed many of the original claims and original defendants. Plaintiffs have not filed a cross appeal. The defendants who were not dismissed now appeal and are collectively referred to as “defendants” throughout this opinion. The plaintiffs’ sole remaining claim is that defendants violated their right to bodily integrity as guaranteed by the Substantive Due Process Clause of the
II.
On this appeal, we decide two substantial issues of public importance. First, viewing each defendant individually, did the district court err in denying defendants’ motions to dismiss based upon qualified immunity? Specifically, did plaintiffs plead a plausible
The second issue is whether the City of Flint is entitled to
III.
We possess jurisdiction under
IV.
Qualified immunity shields public officials “from undue interference with their duties and from potentially disabling threats of liability.” Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982). It is not a “mere defense to liability“; the doctrine provides “immunity from suit.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). This immunity “gives government officials breathing room to make reasonable but mistaken judgments about open legal questions,” “protect[ing] all but the plainly incompetent or those who knowingly violate the law.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (internal quotation marks omitted). A plaintiff bears the burden of showing that a defendant is not entitled to qualified immunity. Bletz v. Gribble, 641 F.3d 743, 750 (6th Cir. 2011). To do so, a plaintiff must show “(1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.” al-Kidd, 563 U.S. at 735 (internal quotation marks omitted). The district court concluded plaintiffs met this standard, and we review that decision de novo. Sutton v. Metro. Gov‘t of Nashville & Davidson Cty., 700 F.3d 865, 871 (6th Cir. 2012).
The assertion of qualified immunity at the motion-to-dismiss stage pulls a court in two, competing directions. On the one hand, the Supreme Court has repeatedly “stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Pearson v. Callahan, 555 U.S. 223, 232 (2009) (internal quotation marks omitted). But on the other, “[w]hen qualified immunity is asserted at the pleading stage,” as defendants did here, “the precise factual basis for the plaintiff‘s claim or claims may be hard to identify.” Id. at 238-39 (citation omitted). We have thus cautioned that “it is generally inappropriate for a district court to grant a
V.
The
There are procedural and substantive due process components. See Range v. Douglas, 763 F.3d 573, 588 (6th Cir. 2014). Only the latter component is at issue here. Substantive due process “bar[s] certain government actions regardless of the fairness of the procedures used to implement them.” Daniels v. Williams, 474 U.S. 327, 331 (1986). It “specifically protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation‘s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would
The Supreme Court “has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this uncharted area are scarce and open-ended.” Collins, 503 U.S. at 125. Substantive Due Process is not “a rigid conception, nor does it offer recourse for every wrongful action taken by the government.” EJS Props., LLC v. City of Toledo, 698 F.3d 845, 862 (6th Cir. 2012). As such, it “does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society.” Daniels, 474 U.S. at 332. That means a “‘careful description’ of the asserted fundamental liberty interest” is essential, Glucksberg, 521 U.S. at 721 (citation omitted), otherwise the Clause would turn into “a font of tort law to be superimposed upon whatever systems may already be administered by the States.” Daniels, 474 U.S. at 332 (citation omitted). Accordingly, we “focus on the allegations in the complaint to determine how [plaintiffs] describe[] the constitutional right at stake and what the [defendants] allegedly did to deprive [them] of that right.” Collins, 503 U.S. at 125.
A.
Plaintiffs’ complaint deals with the scope of the right to bodily integrity, an indispensable right recognized at common law as the “right to be free from . . . unjustified intrusions on personal security” and “encompass[ing] freedom from bodily restraint and punishment.” Ingraham, 430 U.S. at 673–74; see also Davis v. Hubbard, 506 F. Supp. 915, 930 (N.D. Ohio 1980) (“In the history of the common law, there is perhaps no right which is older than a person‘s right to be free from unwarranted personal contact.” (collecting authorities)).
This common law right is first among equals. As the Supreme Court has said: “No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891); cf. Schmerber v. California, 384 U.S. 757, 772 (1966) (“The integrity of an individual‘s person is a cherished value of our society.“). Absent lawful authority, invasion of one‘s body “is an indignity, an assault, and a trespass” prohibited at common law. Union Pac. Ry. Co. v. Botsford, 141 U.S. at 252. On this basis, we have concluded “[t]he right to personal security and to bodily integrity bears an impressive constitutional pedigree.” Doe v. Claiborne Cty., 103 F.3d 495, 506 (6th Cir. 1996).
“[T]his right is fundamental where ‘the magnitude of the liberty deprivation that the abuse inflicts upon the victim strips the very essence of personhood.‘” Kallstrom v. City of Columbus, 136 F.3d 1055, 1063 (6th Cir. 1998) (quoting Doe, 103 F.3d at 506–07) (brackets and ellipsis omitted). “We have never retreated from our recognition that any compelled intrusion into the human body implicates significant, constitutionally protected . . . interests.” Missouri v. McNeely, 569 U.S. 141, 159 (2013) (emphasis added); see also Rochin v. California, 342 U.S. 165, 172 (1952) (forcibly pumping a detainee‘s stomach to obtain evidence was “too close to the rack and the screw to permit of constitutional differentiation“). And more broadly, it is beyond debate that an individual‘s “interest in preserving her life is one of constitutional dimension.” Nishiyama v. Dickson Cty., 814 F.2d 277, 280 (6th Cir. 1987) (en banc), abrogated on other grounds as recognized in Jones v. Reynolds, 438 F.3d 685, 694–95 (6th Cir. 2006).
Bodily integrity cases “usually arise in the context of government-imposed punishment or physical restraint,” but that is far from a categorical rule. Kallstrom, 136 F.3d at 1062 (collecting cases). Instead, the central tenet of the Supreme Court‘s vast bodily integrity jurisprudence is balancing an individual‘s common law right to informed consent with tenable state interests, regardless of the manner in which the government intrudes upon an individual‘s body. See, e.g.,
A few examples illustrate the breadth of this tenet. Consider Washington v. Harper, which addressed the State of Washington‘s involuntary administration of antipsychotic medication to an inmate without a judicial hearing. 494 U.S. 210, 213–17 (1990). There, the Supreme Court had “no doubt” that the inmate “possess[ed] a significant liberty interest in avoiding unwanted administration of antipsychotic drugs under the Due Process Clause of the
The Supreme Court‘s seminal “right to die” case, Cruzan v. Director, Missouri Department of Health, provides further explication. At issue in Cruzan was whether the parents of an individual in a persistent vegetative state could insist that a hospital withdraw life-sustaining care based on her right to bodily integrity. 497 U.S. at 265–69. Writing for the Court, Chief Justice Rehnquist extensively detailed the line between the common law, informed
This nonconsensual intrusion vis-à-vis government interest line of cases has played out time and time again in the lower courts. See, e.g., United States v. Brandon, 158 F.3d 947, 953 (6th Cir. 1998) (“[T]he issue of forced medication implicates . . . [the] liberty interest in being free from bodily intrusion.“).3 The numerous cases involving government experiments on unknowing and unwilling patients provide a strong analogy to the Flint Water Crisis.4 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.
[t]he choice Plaintiffs would have been forced to make was one of life or death. If the Constitution protects personal autonomy in making certain types of important decisions, the decision whether to participate in the Human Radiation Experiments was one that each individual Plaintiff was entitled to make freely and with full knowledge of the purpose and attendant circumstances involved. Without actually seizing the Plaintiffs and forcing them to submit to these experiments, the . . . agents of the state[] accomplished the same feat through canard and deception[.]
Id. at 812 (internal quotation marks and citations omitted). Also key was the risk of harm—the plaintiffs received “total and partial body radiation, which caused burns, vomiting, diarrhea and bone marrow failure, and resulted in death or severe shortening of life.” Id. at 814.
We find the Cincinnati Radiation matter especially analogous. In both instances, individuals engaged in voluntary actions that they believed would sustain life, and instead received substances detrimental to their health. In both instances, government officials engaged in conduct designed to deceive the scope of the bodily invasion. And in both instances, grievous harm occurred. Based on the facts and principles set forth in the above cases, we therefore agree with the district court that “a government actor violates individuals’ right to bodily integrity by
Finally, we note what plaintiffs’ claim does not entail. There is, of course, “‘no fundamental right to water service.‘” In re City of Detroit, 841 F.3d 684, 700 (6th Cir. 2016) (quoting Golden v. City of Columbus, 404 F.3d 950, 960 (6th Cir. 2005)). Moreover, the Constitution does not guarantee a right to live in a contaminant-free, healthy environment. See, e.g., Lake v. City of Southgate, 2017 WL 767879, at *4 (E.D. Mich. Feb. 28, 2017) (collecting cases). To this end, several defendants and the dissent cite a California state case involving residents complaining about a city fluoridating its drinking water supply. See Coshow v. City of Escondido, 132 Cal. App. 4th 687, 709 (2005). However, Coshow is particularly inapposite because it shows the push-and-pulls of competing policy decisions that generally fall outside the scope of a violation of the right to bodily integrity—there, the government publicly introduced fluoride into the water system, a chemical frequently added to public water systems to prevent tooth decay. Here, defendants make no contention that causing lead to enter Flint‘s drinking water was for the public good or that they provided notice to Flint residents about the lead-laced water. Therefore, ”Coshow did not address whether substantive due-process protections might be implicated in the case of intentional introduction of known contaminants by governmental officials, and its reasoning is inapplicable here.” Mays, 916 N.W.2d at 262 n.16.
B.
Upon a showing of a deprivation of a constitutionally protected liberty interest, a plaintiff must show how the government‘s discretionary conduct that deprived that interest was constitutionally repugnant. See Am. Express Travel Related Servs. Co. v. Kentucky, 641 F.3d 685, 688 (6th Cir. 2011) (“[A] plaintiff must demonstrate a deprivation of a constitutionally protected liberty or property interest in order to establish a due process violation based on discretionary conduct of government officials[.]“). We use the “shocks the conscience” rubric to evaluate intrusions into a person‘s right to bodily integrity. Lillard v. Shelby Cty. Bd. of Educ., 76 F.3d 716, 725 (6th Cir. 1996). Thus, a “plaintiff must show as a predicate the deprivation of a liberty or property interest” and conscience-shocking conduct. See EJS Props., 698 F.3d at 861;
“[T]he measure of what is conscience shocking is no calibrated yard stick,” nor is it “subject to mechanical application.” Lewis, 523 U.S. at 847, 850. Several “tropes” help explain its meaning, Range, 763 F.3d at 589, with the focus again being on “executive abuse of power.” Lewis, 523 U.S. at 846. Rochin is the “benchmark.” Id. at 846–47. Due-process-violative conduct (there, forced stomach pumping to obtain evidence) “shocks the conscience,” infringes upon the “decencies of civilized conduct,” is “so brutal and so offensive to human dignity,” and interferes with rights “implicit in the concept of ordered liberty.” Rochin, 342 U.S. at 169, 172–74 (citation omitted); see also Lewis, 523 U.S. at 846–47 (collecting authorities). “These are subjective standards, to be sure, but they make clear that the ‘shocks the conscience’ standard is not a font of tort law, but is instead a way to conceptualize the sort of egregious behavior that rises to the level of a substantive due process violation.” Range, 763 F.3d at 590. Stated differently, the shocks-the-conscience test is the way in which courts prevent transforming run-of-the-mill tort claims into violations of constitutional guarantees.
This “middle state[] of culpability ‘may or may not be shocking depending on the context,‘” Range, 763 F.3d at 590 (quoting Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., 542 F.3d 529, 535 (6th Cir. 2008)), for what may “constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial,” Lewis, 523 U.S. at 850 (quoting Betts v. Brady, 316 U.S. 455, 462 (1942)). “Deliberate indifference that shocks in one environment may not be so patently egregious in another, and our concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience shocking.” Id.
Lewis delineates this dichotomy. The issue there was “whether a police officer violates the
“The critical question in determining the appropriate standard of culpability is whether the circumstances allowed the state actors time to fully consider the potential consequences of their conduct.” Ewolski v. City of Brunswick, 287 F.3d 492, 510 (6th Cir. 2002) (internal quotation marks and brackets omitted). This “time to deliberate consideration,” however, does not “transform any reckless action from a tort to conscience-shocking behavior simply because the government actor had time to appreciate any risk of harm. Time is instead one element in determining whether the actor‘s culpability ‘inches close enough to harmful purpose to spark the shock that implicates’ substantive due process.” Range, 763 F.3d at 590 (quoting Lewis, 523 U.S. at 853) (brackets omitted). Our focus instead is upon the entirety of the situation—“the type of harm, the level of risk of the harm occurring, and the time available to consider the risk of harm are all necessary factors in determining whether an official was deliberately indifferent.” Id. at 591.
After Lewis, “the key variable is whether actual deliberation is practical, not whether the claimant was in state custody.” Ewolski, 287 F.3d at 510 n.5. This is because “[c]ustodial settings . . . are not the only situations in which officials may have a reasonable opportunity to deliberate.” Id. But more importantly, even in non-custodial situations, we have stressed that deliberate indifference claims require “something more“:
[A] something that we have variously described as callous disregard for the risk of injury, or action in an arbitrary manner that shocks the conscience or that indicates an intent to injure. That additional element—be it termed callous disregard or intent to injure—ensures that only the most egregious official conduct can be said to be arbitrary in the constitutional sense.
Schroder v. City of Fort Thomas, 412 F.3d 724, 730 (6th Cir. 2005) (internal citations, quotation marks, and brackets omitted).
Extensive time to deliberate. There is no doubt that the lead-contamination inflicted upon the people of Flint was a predictable harm striking at the core of plaintiffs’ bodily integrity, and
Involuntary relationship. In addition to the time to deliberate, the relationship between the City of Flint and its residents matters. At the outset, we acknowledge we deal here not with the typical line of voluntary/involuntary relationships that normally occur in our caselaw. Instead, two factors weigh toward an involuntary relationship. First, Flint‘s transmission of drinking water to its residents is mandatory on both ends—Flint‘s Charter and Code of Ordinances mandate that the city supply water to its residents, see, e.g., Flint City Charter § 4-203(A), Flint Code of Ord. § 46-7, and as the City expressly argued below, “residents are legally required to take and pay for the water, unless they use an approved spring or well.” See Flint Code of Ord. §§ 46-50(b), 46-51, 46-52. Second, various defendants’ assurances of the water‘s potability hid the risks, turning residents’ voluntary consumption of a substance vital to subsistence into an involuntary and unknowing act of self-contamination. As the district court aptly reasoned, “[m]isleading Flint‘s residents as to the water‘s safety—so that they would continue to drink the water and Flint could continue to draw water from the Flint River—is no different than the forced, involuntary invasions of bodily integrity that the Supreme Court has deemed unconstitutional.” (Citations omitted).7
No legitimate government purpose. The decision to temporarily switch Flint‘s water source was an economic one and there is no doubt that reducing cost is a legitimate government purpose. See, e.g., Garrett v. Lyng, 877 F.2d 472, 476 (6th Cir. 1989). When a government acts
There is no allegation defendants intended to harm Flint residents. Accordingly, the question is whether defendants acted with “[d]eliberate indifference in the constitutional sense,” Range, 763 F.3d at 591, which we have “equated with subjective recklessness,” Ewolski, 287 F.3d at 513 (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)). This is a particularly high hurdle, for plaintiffs must show the government officials “knew of facts from which they could infer a ‘substantial risk of serious harm,’ that they did infer it, and that they acted with indifference ‘toward the individual‘s rights.‘” Range, 763 F.3d at 591 (citation omitted). The deliberate-indifference standard requires an assessment of each defendant‘s alleged actions individually. See Bishop v. Hackel, 636 F.3d 757, 767 (6th Cir. 2011). Our focus is on each individual defendant‘s conduct, their “subjective awareness of substantial risk of serious injury,” and whether their actions were made “in furtherance of a countervailing governmental purpose that justified taking that risk.” Hunt, 542 F.3d at 541.
C.
Flint defendants (Earley, Ambrose, and Croft). We begin with one of the two sets of defendants who were instrumental in creating the crisis—defendants Croft, Emergency Manager Earley, and Emergency Manager Ambrose. These individuals were among the chief architects of Flint‘s decision to switch water sources and then use a plant they knew was not ready to safely process the water, especially in light of the Flint River‘s known environmental issues and the
The dissent concludes that Ambrose and Earley were merely “rel[ying] on expert advice” and therefore their actions could not demonstrate a callous disregard for plaintiffs. However, this conclusion ignores Wesley‘s guidance not to resolve such issues at the motion-to-dismiss stage. It also ignores our obligation to accept plaintiffs’ allegations as true and draw reasonable inferences from those allegations. One can place a benign construction on the factual allegations and draw inferences so that the facts amount to a negligent mismanagement of priorities and risks; but the allegations also support a reasonable inference that Earley prioritized a drive to cut costs with deliberate and reckless indifference to the likely results, and Ambrose refused to reconnect to Detroit water despite knowing the substantial risk to Flint residents’ health.
For now, we conclude that plaintiffs’ complaint plausibly alleges a constitutional violation as to these defendants.
D.
MDEQ Defendants (Busch, Shekter-Smith, Prysby, Wurfel, and Wyant). The MDEQ defendants were the other set of individuals front and center during the crisis. The allegations
- Less than two weeks before the switch to Flint water, the Flint water treatment plant‘s water quality supervisor wrote to Prysby and Busch that he had inadequate staff and resources to properly monitor the water. As a result, he informed Prysby and Busch, “I do not anticipate giving the OK to begin sending water out anytime soon. If water is distributed from this plant in the next couple of weeks, it will be against my direction.” Busch and Prysby did not act on this warning. Instead, a few days later, Busch drafted a talking point for a Flint community meeting that highlighted that MDEQ was “satisfied with the City‘s ability to treat water from the Flint River.”
- After General Motors very publicly stopped using Flint River water at its engine plant for fear of corrosion, Prysby made sure the department‘s approach was to spin this symptom as not related to public health instead of investigating the underlying problem. He “stressed the importance of not branding Flint‘s water as ‘corrosive’ from a public health standpoint simply because it does not meet a manufacturing facility‘s limit for production.”
- On February 27, 2015, Busch lied when he told “the EPA on behalf of MDEQ that the Flint Water Treatment Plant had an optimized corrosion control program.” However, Busch knew “[b]y no later than April 2015, but likely much earlier . . . that no corrosion control was being used in Flint following the switch to the Flint River as the water source.” (Emphasis added).
- In the midst of the crisis and with full knowledge that Flint‘s water distribution system was corroded and presented significant health issues, Shekter-Smith callously excused Flint‘s lack of drinking water compliance as “circumstances happen.” And after the EPA pressed MDEQ officials for MDEQ‘s failure to optimize corrosion controls in July 2015, she requested the EPA nonetheless cover her department‘s decision by “indicat[ing] in writing . . . [its] concurrence that the city is in compliance with the lead and copper rule . . . .” Doing so, she wrote, “would help distinguish between [MDEQ‘s] goals to address important public health issues separately from the compliance requirements of the actual rule which we believe have been and continue to be met in the city of Flint.” In other words, “technical compliance” trumped addressing an urgent and catastrophic public health disaster.
On numerous occasions, defendant Wurfel, the public face of the crisis, announced the water was safe to drink, and demeaned, belittled, and aggressively dampened attempts by the scientific community to challenge the government‘s assertions that Flint did not have a problem with its drinking water. And he suggested that concern regarding the water was at best a short-term problem—that by the time the City had completed its lead-testing, the City would already be drawing from a different water source altogether.
As with the Flint defendants, these MDEQ defendants created the Flint Water environmental disaster and then intentionally attempted to cover-up their grievous decision. Their actions shock our conscience. 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.
To the extent these defendants made “honest mistakes in judgment“—in law or fact—in interpreting and applying the Lead and Copper Rule, see, e.g., Pearson, 555 U.S. at 231, that defense is again best reserved for after discovery. See, e.g., Wesley, 779 F.3d at 433–34. This Rule generally requires public water systems to monitor lead and copper levels and to treat certain elevated levels in accordance with the regulation.
By the same token, we reject Wurfel‘s reliance upon two Second Circuit cases involving statements by public officials about the air-quality in lower Manhattan in the days following the September 11 terrorist attacks, see Lombardi v. Whitman, 485 F.3d 73 (2d Cir. 2007) and
The dissent again asks us to view plaintiffs’ allegations in a light favorable to defendants, arguing that Shekter-Smith, Busch, and Prysby simply “misinterpreted the [EPA‘s] Lead and Copper Rule” and provided “misguided advice rooted in mistaken interpretations of the law.” But plaintiffs’ allegations, which we must accept, are that Busch, Shekter-Smith, and Prysby authorized use of Flint River water with knowledge of its contaminants and then deceived others to hide the fact of contamination. Moreover, it is improper to conclude at this stage that Shekter-Smith, Busch, and Prysby merely misinterpreted the Lead and Copper Rule because plaintiffs allege that the EPA informed them that they were not complying with EPA requirements, providing them with a memorandum that “identified the problem, the cause of that problem, and the specific reason the state missed it.” In response, “Defendants ignored and dismissed” the memorandum. Although the dissent claims that plaintiffs’ factual allegations do not support that Wurfel‘s statements were knowing lies, that is a reasonable inference from plaintiffs’ factual allegations.
We cannot say the same with respect to defendant Director Wyant based on the allegations in the complaint. At most, plaintiffs claim Wyant was aware of some of the issues arising with the water supply post-switch and admitted his department‘s “colossal failure” after the City reconnected to DWSD. Plaintiffs do not plausibly allege Wyant personally made decisions regarding the water-source switch, nor do they allege he personally engaged in any other conduct that we find conscience-shocking. In short, while the conduct of individuals within his department was constitutionally abhorrent, we may only hold Wyant accountable for his own conduct, not the misconduct of his subordinates. See Ashcroft v. Iqbal, 556 U.S. 662, 676–77 (2009). For this reason, the district court erred in denying defendant Wyant‘s motion to dismiss.
MDHHS Executives (Lyon and Wells). In the complaint before us, plaintiffs’ allegations against Michigan Department of Health and Human Services (MDHHS) Director Lyon and Chief Medical Executive Wells are minimal. The complaint sets forth no facts connecting Lyon and Wells to the switch to the Flint River or the decision not to treat the water, and there is no allegation that they took any action causing plaintiffs to consume the lead-contaminated water. Instead, plaintiffs claim generally that Lyon and Wells failed to “protect and notify the public” of the problems with Flint‘s water shortly before Flint switched back to DWSD. However, the Due Process Clause is a limitation only on government action. See DeShaney, 489 U.S. at 195.
We are thus left with allegations of at most questionable actions by Lyon and Wells. The sole allegation against Lyon is that he attempted to “discredit” a study by Dr. Mona Hanna-Attisha, a pediatrician at Hurley Medical Center in Flint, showing significant increases of blood lead levels in children post-water-source switch.8 Paragraph 289 of plaintiffs’ complaint sets forth plaintiffs’ entire case against Lyon:
MDHHS Director Nick Lyon continues trying to discredit Dr. Hanna-Attisha‘s study despite his own department‘s knowledge that it shows a real problem. In an e-mail, he stated: “I need an analysis of the Virginia Tech/Hurley data and their conclusions. I would like to make a strong statement with a demonstration of proof that the lead blood levels seen are not out of the ordinary and are attributable to seasonal fluctuations. Geralyn is working on this for me but she needs someone in public health who can work directly with her on immediate concerns/questions.”
And the two main factual allegations against Wells are equally sparse:
- On September 29, 2015, Wells received an email from an MDHHS employee asking, “Is it possible to get the same type of data for just children under the age of six? So basically, the city of Flint kids ages six and under with the same type of approach as the attached chart you gave us last week?” Another
employee responded that “[i]t‘s bad enough to have a data war with outside entities, we absolutely cannot engage in competing data analyses within the Department, or, heaven forbid, in public releases.” Dr. Wells replied “Agree.” Plaintiffs claim this “show[ed] MDHHS continuing efforts to mislead the public, protect itself, and discredit Dr. Hanna-Attisha.” - In response to an email from Dr. Hanna-Attisha showing the tripling of blood lead levels, Wells “responded that the state was working to replicate Hanna-Attisha‘s analysis, and inquired about Dr. Hanna-Attisha‘s plans to take the information public.” According to plaintiffs, this shows that “[w]hile discouraging her department to look further into Dr. Hanna-Attisha‘s findings and misleading Dr. Hanna-Attisha, Defendant Wells remained focused on a single task; saving face at the expense of Flint‘s residents.”
At most, plaintiffs have alleged Lyon and Wells were unjustifiably skeptical of Dr. Hanna-Attisha‘s study and were hoping to assemble evidence to disprove it. This falls well-short of conscience-shocking conduct and therefore the district court erred in denying their motions to dismiss.
F.
MDHHS Employees (Peeler and Scott). That leaves us with two MDHHS employees, Nancy Peeler and Robert Scott, who jointly worked on projects within MDHHS designed to eliminate lead exposure. As with Lyon and Wells, the allegations against Peeler and Scott relate not to the switch of water sources, but to how they processed—or rather did not process—data relating to lead exposure more than a year later.
In general, plaintiffs allege Peeler and Scott “participated in, directed, and/or oversaw the department‘s efforts to hide information to save face, and actively sought to obstruct and discredit the efforts of outside researchers. Even when [their] own department had data that verified outside evidence of a lead contamination problem, [they] continued trying to generate evidence to the contrary.” Scott “also served a key role in withholding and/or delaying disclosure of data that outside researchers needed to protect the people of Flint.” In support of these general allegations, plaintiffs point to the following:
- Beginning in July 2015, Peeler learned there was “an uptick in children with elevated blood lead levels in Flint in July, August, and September 2014,” but attributed it to “seasonal variation” instead of the water-source switch.
On September 11, 2015, Robert Scott e-mailed a copy of a grant proposal by a Virginia Tech professor, Marc Edwards, that “described a ‘perfect storm’ of ‘out of control’ corrosion of city water pipes leading to ‘severe chemical/biological health risks for Flint residents‘” to Peeler and others. Scott stated, “When you have a few minutes, you might want to take a look at it. Sounds like there might be more to this than what we learned previously. Yikes!” - Following Dr. Hanna-Attisha‘s study, Scott “tried to recreate [her] numbers,” saw “a difference“—“but not as much difference” as found by Dr. Hanna-Attisha—in children‘s lead-levels pre-and post-switch, but told Peeler that he was “sure this one is not for the public.”
- Scott, Peeler, and another MDHHS colleague corresponded about a Detroit Free Press story on Dr. Hanna-Attisha‘s study. Scott wrote, “The best I could say is something like this: ‘While the trend for Michigan as a whole has shown a steady decrease in lead poisoning year by year, smaller areas such as the city of Flint have their bumps from year to year while still trending downward overall.‘” Peeler chimed in that her “secret hope is that we can work in the fact that this pattern is similar to the recent past.” In plaintiffs’ view, this correspondence shows Peeler and Scott “intentionally withheld information that they had a duty to disclose to the public, and actively sought to hide the lead poisoning epidemic that they had previously failed to discover.”
- Scott drafted an apology email to Prof. Edwards explaining why he failed to respond to multiple requests for state data. His unsent email to Edwards explained that he “worked with you earlier this month to get data to you relatively quickly but did not manage to complete the process before I went on annual leave for several days. I neglected to inform you that I‘d be away, and I apologize for not informing you.” Scott did not send the email to Edwards after Peeler told him to “apologize less,” “despite,” in plaintiffs’ words, “the fact that Scott admitted to going on vacation and leaving an unimportant task unfinished as a public health crisis unfolded.”
In total, plaintiffs’ allegations against Scott and Peeler are: (1) after Dr. Hanna-Attisha released her study on September 24, 2015, Scott tried to “recreate” the study, found a smaller difference in children‘s lead levels than Dr. Hanna-Attisha‘s study, and concluded his results were “not for the public“; (2) Scott did not timely provide researchers with requested data; (3) Peeler and Scott knew that elevated lead levels could have been due to corrosion in the city water pipes; and (4) both sought to attribute it to regular fluctuations. In our view, these allegations do not rise to the level of “callous disregard“; plaintiffs do not factually link Scott‘s
In sum, the district court erred in finding that plaintiffs adequately alleged that defendants Wyant, Lyon, Wells, Peeler, and Scott violated plaintiffs’ substantive due process right to bodily integrity, but correctly held plaintiffs plausibly alleged such a violation against defendants Earley, Ambrose, Croft, Busch, Shekter-Smith, Prysby, and Wurfel.
VI.
A right is “clearly established” when its “contours . . . [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). Notice to officials is paramount; “the salient question” in evaluating the clearly established prong is whether officials had “fair warning” that their conduct was unconstitutional. Hope v. Pelzer, 536 U.S. 730, 741 (2002). In making this determination, “we must look first to decisions of the Supreme Court, then to decisions of this court and other courts within our circuit, and finally to decisions of other circuits.” Baker v. City of Hamilton, 471 F.3d 601, 606 (6th Cir. 2006) (quotation omitted).
Plaintiffs must generally identify a case with a fact pattern similar enough to have given “fair and clear warning to officers” about what the law requires. White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam) (quotation omitted); see also Arrington-Bey v. City of Bedford Heights, 858 F.3d 988, 993 (6th Cir. 2017). But such a case need not “be on all fours in order to form the basis for the clearly established right.” See Burgess v. Fischer, 735 F.3d 462, 474 (6th Cir. 2013). We do not require a prior, “precise situation,” Sutton, 700 F.3d at 876, a finding that “the very action in question has previously been held unlawful,” Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001) (internal quotation marks omitted), or a “case directly on point.” al-Kidd, 563 U.S. at 741. Instead, the test is whether “existing precedent must have placed the constitutional question beyond debate.” Id. This means there must either be “controlling authority or a robust consensus of cases of persuasive authority.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014) (internal quotation marks omitted). Finally, “an action‘s unlawfulness can be ‘clearly established’ from direct holdings, from specific examples describing certain conduct as prohibited, or from the general reasoning that a court employs.” Baynes v. Cleland, 799 F.3d 600, 612 (6th Cir. 2015) (citing Hope, 536 U.S. at 742–44).
Given the unique circumstances of this case, defendants argue we should defer to the “breathing room” qualified immunity provides and hold that the invasion of plaintiffs’ right to bodily integrity via life-threatening substances with no therapeutic benefit introduced into individuals without their consent was not clearly established before the officials engaged in their respective conduct. The dissent likewise suggests that “plaintiffs must be able to ‘identify a case with a similar fact pattern’ to this one ‘that would have given “fair and clear warning to officers” about what the law requires.‘” (Quoting Arrington-Bey, 858 F.3d at 993 (quoting White, 137 S. Ct. at 552)). But the Court has “mad[e] clear that officials can still be on notice that their conduct violates established law even in novel factual circumstances.” Hope, 536 U.S. at 741; see also White, 137 S. Ct. at 552 (noting that “general statements of the law are not inherently incapable of giving fair and clear warning” where the unlawfulness is apparent (citation omitted)). For the reasons that follow, we decline to erect the suggested “absolute barrier to recovering damages against an individual government actor.” Bletz, 641 F.3d at 756 (citation omitted).
The lack of a comparable government-created public health disaster precedent does not grant defendants a qualified immunity shield. Rather, it showcases the grievousness of their alleged conduct: “The easiest cases don‘t even arise,” United States v. Lanier, 520 U.S. 259, 271 (1997) (citation and internal quotation marks omitted); “there is no need that the very action in question [have] previously been held unlawful” because “[t]he unconstitutionality of outrageous conduct obviously will be unconstitutional,” Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 377 (2009) (internal quotation marks omitted); and “[s]ome personal liberties are so fundamental to human dignity as to need no specific explication in our Constitution in order to ensure their protection against government invasion.” Brannum v. Overton Cty. Sch. Bd., 516 F.3d 489, 499 (6th Cir. 2008).
Furthermore, the long line of Supreme Court cases discussed above—Harper, Cruzan, Rochin, Winston, to name a few—all build on each other from one foundation: an individual‘s right to bodily integrity is sacred, founded upon informed consent, and may be invaded only upon showing of a government interest. The Court could not have been clearer in Harper when it stated that “[t]he forcible injection of medication into a nonconsenting person‘s body represents a substantial interference with that person‘s liberty.” 494 U.S. at 229. Here we have an even more dramatic invasion, for at least in Harper the state forced medication—something needed to improve or sustain life—into its citizens; here, government officials caused Flint residents to consume a toxin with no known benefit, did so without telling them, and made affirmative representations that the water was safe to drink.
The same can be gleaned from Cruzan. If the common law right to informed consent is to mean anything, reasoned the Court, it must include “the right of a competent individual to refuse medical treatment.” 497 U.S. at 277. If an individual has a right to refuse to ingest medication, then surely she has a right to refuse to ingest a life necessity. Cruzan instructs as much, recognizing that the “logic” of its bodily integrity cases—i.e., the reasoning—
Several defendants take issue with the district court‘s definition of the right, contending it deals in generality instead of specificity. See, e.g., al-Kidd, 563 U.S. at 742 (admonishing courts “not to define clearly established law at a high level of generality“). Our focus, of course, is “whether the violative nature of particular conduct is clearly established . . . in light of the specific context of the case.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (internal quotation marks omitted). To be sure, sweeping statements about constitutional rights do not provide officials with the requisite notice. “For example,” the Supreme Court has told us, “the right to due process of law is quite clearly established by the Due Process Clause, and thus there is a sense in which any action that violates that Clause (no matter how unclear it may be that the particular action is a violation) violates a clearly established right.” Anderson, 483 U.S. at 639. But, the deficiencies of a too-general clearly established test have no bearing on the specifics of this case. Here, the right recognized by the district court—and one we adopt as directly flowing from the reasoning of the long line of bodily integrity and shocks-the-conscience cases—is neither a “general proposition” nor one “lurking in the broad ‘history and purposes‘” of the substantive due process clause. al-Kidd, 563 U.S. at 742. “Any other result would allow Hope‘s fear of ‘rigid, overreliance on factual similarity’ in analyzing the ‘clearly established’ prong of
In providing a tainted life-necessity and falsely assuring the public about its potability, government officials “strip[ped] the very essence of personhood” from those who consumed the water. Doe, 103 F.3d at 507. They also caused parents to strip their children of their own personhood. If ever there was an egregious violation of the right to bodily integrity, this is the case; the “front to human dignity in this case is compelling,” United States v. Booker, 728 F.3d 535, 546 (6th Cir. 2013), and defendants’ “conduct is so contrary to fundamental notions of liberty and so lacking of any redeeming social value, that no rational individual could believe . . . [their conduct] is constitutionally permissible under the Due Process Clause.” Doe, 103 F.3d at 507. We therefore agree with the district court that plaintiffs have properly pled a violation of the right to bodily integrity against Howard Croft, Darnell Earley, Gerald Ambrose, Liane Shekter-Smith, Stephen Busch, Michael Prysby, and Bradley Wurfel, and that the right was clearly established at the time of their conduct. Should discovery shed further light on the reasons behind their actions (as but one example, a governmental interest that trumps plaintiffs’ right to bodily integrity), they are free to raise the qualified immunity defense again at the summary judgment stage. See, e.g., Miller v. Maddox, 866 F.3d 386, 390 (6th Cir. 2017); see also Wesley, 779 F.3d at 433–34.11
VII.
The final issue is Flint‘s claim that the district court erred in denying it sovereign immunity. The
Flint, obviously, is not a state; it is a municipality incorporated under the laws of the State of Michigan. See People v. Pickett, 63 N.W.2d 681, 684 (Mich. 1954). The Supreme Court could not be clearer in demarcating between states and their political subdivisions for sovereign immunity purposes: “The bar of the
Flint readily concedes municipalities do not enjoy sovereign immunity. That would normally end our analysis, but this is not a typical case. At the time of the crisis, Flint was so financially distressed that the State of Michigan had taken over its day-to-day local government operations by way of a statutory mechanism enacted to deal with municipal insolvency—gubernatorial-appointed individuals who “act for and in the place and stead of the governing
A.
“The entity asserting
We have characterized the first factor—the state‘s potential liability for a judgment against the entity—as “the foremost,” id., the “most salient,” Town of Smyrna v. Mun. Gas Auth. of Ga., 723 F.3d 640, 651 (6th Cir. 2013), and one creating “a strong presumption” on the issue. Kreipke v. Wayne State Univ., 807 F.3d 768, 777 (6th Cir. 2015). Although this “state-treasury
1.
Michigan‘s potential liability (or rather, lack thereof) weighs heavily against Flint. Michigan law provides that local property tax rolls account for judgments against cities or its officers, see
2.
As to the second factor—state law treatment of, and state control over, the entity—we start with a foundational aspect of Michigan law undisputed by the parties: Municipalities enjoy significant autonomy over local governmental functions. “Michigan is strongly committed to the concept of home rule, and constitutional and statutory provisions which grant power to municipalities are to be liberally construed.” Bivens v. Grand Rapids, 505 N.W.2d 239, 243 (Mich. 1993). Michigan‘s Constitution grants cities the “power to adopt resolutions and ordinances relating to its municipal concerns, property and government.”
First, citing Curry v. City of Highland Park, 219 N.W. 745 (Mich. 1928), Flint claims that when a municipality acts in the interest of public health, like providing water services, it “acts as the arm of the state” under Michigan law. Id. at 748. We disagree. For one, Curry noted that “the management of water works” is a “matter[] of purely local concern . . . as distinguished from the state at large.” Id. (citation omitted). But more importantly and as recently illustrated by another Flint Water Crisis case, that is not what Michigan law provides.
Second, we are equally unconvinced that Flint‘s emergency-management status should weigh in Flint‘s favor. At first blush, Flint‘s argument here has some facial appeal—generally speaking,
Once in receivership, the argument goes, Flint was essentially at the whim of its emergency managers. One need not look beyond
Upon appointment, an emergency manager shall act for and in the place and stead of the governing body and the office of chief administrative officer of the local government. The emergency manager shall have broad powers in receivership to rectify the financial emergency and to assure the fiscal accountability of the local government and the local government‘s capacity to provide or cause to be provided necessary governmental services essential to the public health, safety, and welfare. Following appointment of an emergency manager and during the pendency of receivership, the governing body and the chief administrative officer of the local government shall not exercise any of the powers of those offices except as may be specifically authorized in writing by the emergency manager or as otherwise provided by this act and are subject to any conditions required by the emergency manager.
There is also a certain amount of control the state has over the emergency manager. Among other things, an emergency manager “is a creature of the Legislature with only the power and authority granted by statute“; is appointed by the governor; serves at the governor‘s pleasure, and may be removed by the governor or by impeachment by the Legislature; receives financial compensation from the state treasury; is subjected “to various codes of conduct otherwise applicable only to public servants, public officers and state officers“; and is statutorily obligated to submit certain plans and reports to state officials. See Mays, 916 N.W.2d at 256 (citations omitted). On this basis, the Michigan Court of Appeals has held (again, in a Flint Water Crisis matter) that an emergency manager is a “state officer” for purposes of the Court of Claims Act
The problem with Flint‘s argument is that Michigan courts have rejected the notion that a city‘s emergency management status transforms a city into a state entity. In the words of the Michigan Court of Appeals:
As indicated in the Local Financial Stability and Choice Act, “it is a valid public purpose for this state to take action and to assist a local government in a financial emergency so as to remedy the financial emergency.” The primary purpose of the Act, then, was for the State of Michigan to assist local governments temporarily during a financial crisis. The emergency manager acts in the place of the chief administrative officer and governing body for and on behalf of the local government only. At all times, then, the City remained a municipality, albeit with a state employee temporarily overseeing the financial management of the municipality affairs. The City was at no time operating as “a means or agency through which a function of another entity i.e., the state is accomplished.” No function or purpose of the state was accomplished in the emergency manager overseeing the City. The City was instead always operating as a means through which functions of its own entity were accomplished. The state simply engaged a state employee to temporarily assist the City in performing its functions and serving its local purposes for its citizens.
Boler v. Governor, --- N.W.2d ---, 2018 WL 2991257, at *6 (alterations and citations omitted); see also Collins, 2016 WL 8739164, at *4–5. We agree with this well-reasoned analysis. Moreover, it is consistent with our recent decision in Phillips, where we noted
Given this, we conclude the second factor tilts against Flint.
3.
The appointment factor weighs in Flint‘s favor.
4.
Whether the entity‘s functions fall within the traditional purview of state or local government weighs heavily against Flint. Under
Flint has no answer for this obvious point, and instead asks us to narrowly focus on the City‘s provision of waterworks. It underwhelmingly strings this argument together: Because Michigan‘s Safe Drinking Water Act provides the MDEQ with “power and control over public water supplies and suppliers of water” and criminalizes the failure to comply with MDEQ rules, see
B.
In sum, Flint has not met its burden to show that when under emergency management, it was an “arm of the state” protected by the
VIII.
For these reasons, we affirm the district court in part, and reverse in part.
CONCURRING IN PART AND DISSENTING IN PART
McKEAGUE, Circuit Judge, concurring in part and dissenting in part. The majority tells a story of intentional poisoning based on a grossly exaggerated version of plaintiffs’ allegations. 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, that information turned out to be grievously wrong. The result is what has become known as the Flint Water Crisis. The question this case presents is not whether the collective result of the officials’ actions—the Water Crisis—caused any harm. It 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. 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.
As in all cases dealing with the defense of qualified immunity, it is plaintiffs’ burden to establish, first, that the defendants violated a constitutional right and, second, that the right was clearly established at the time the challenged conduct took place. Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). I have serious doubts about whether plaintiffs carried their burden at the first prong of the analysis. I am certain they failed to carry their burden at the second. The majority reaches the opposite conclusion by building on a factual narrative of its own invention.
To place the qualified-immunity analysis on firmer footing, I begin with a recitation of the allegations as told by plaintiffs in their complaint. I then turn to qualified immunity‘s two prongs. As to the first, I doubt that plaintiffs allege that any defendant deprived them of a
Before moving to the analysis, I note several points of agreement with the majority opinion. First, I join the majority in rejecting the City of Flint‘s argument that it is entitled to
I
I begin with a review of the facts. Because this case comes before us on appeal from a motion to dismiss for failure to state a claim, I accept all factual allegations as true and construe them in the light most favorable to plaintiffs. Linkletter v. W. & S. Fin. Grp., Inc., 851 F.3d 632, 637 (6th Cir. 2017).
The Flint Water Crisis began when the City of Flint, undergoing extreme financial distress, came under the leadership of a succession of “Emergency Managers”—temporary city managers appointed by the governor to “act for and in the place and stead of the governing body and the office of chief administrative officer of the local government.”
Before the switch was finalized, Darnell Earley took over as Emergency Manager, assuming the position in November 2013. The City officially switched to the Flint River in April 2014. For decades prior, the Flint water treatment plant was designated for emergency use only. A 2011 “feasibility report” concluded that it would take extensive upgrades to bring it in compliance with “applicable standards” for use as a permanent water source. Plaintiffs allege that Earley “rushed” the switch to meet a “self-imposed” and “aggressive” deadline, without ensuring that Flint‘s water treatment plant was ready to properly treat Flint River water, and that he did so for the purpose of cutting costs. But they also assert that, at some point before the April 2014 switch, Flint hired an engineering firm—Lockwood, Andrews, & Newman (Lockwood)—“to prepare Flint‘s water treatment plant for the treatment of new water sources, including both the KWA and the Flint River.” Even though the Flint River water was highly corrosive, plaintiffs allege that Lockwood did not advise the City to set water quality standards or implement corrosion control at the water treatment plant prior to using the River as a drinking water source.
Neither did the MDEQ—the state agency primarily responsible for ensuring compliance with federal and state safe drinking water laws. Relevant here, the MDEQ was tasked with ensuring Flint complied with the federal Lead and Copper Rule. That Rule generally requires public water systems to monitor and treat lead and copper levels in drinking water.
Soon after the transition, however, problems emerged. Residents complained of oddly smelling and discolored water. In October 2014, General Motors stopped using the City water at its engine-manufacturing plant out of fear that high levels of chloride would cause corrosion. Then, after the City attempted to disinfect the water, it discovered trihalomethanes—a potentially toxic byproduct caused by attempting to disinfect the water. That discovery prompted the City to mail a notice to its customers explaining that the City was in violation of the
On January 9, 2015, the first apparent concerns of lead in Flint‘s drinking water began to emerge. On that day, The University of Michigan-Flint discovered lead in campus drinking fountains. It is unclear from the complaint whether that discovery was publicized and thus whether any City or State official involved in testing or distributing Flint‘s water knew about the discovery.
Also around January 2015, and largely in response to citizen complaints, Flint hired another engineering firm—Veolia North America, LLC (Veolia)—to review the City‘s water quality. Veolia completed a “160-hour assessment of the treatment plant, distribution system, customer services and communication programs, and capital plans and annual budget.” The firm issued a final report in March, in which it concluded that Flint was in “compliance with State and Federal water quality regulations, and based on those standards, the water [was] considered to meet drinking water requirements.” Additionally, it stated that discolorations in the water “raise[d] questions” but that the water remained safe to drink.
In the meantime, several MDEQ employees were having internal discussions about Flint‘s water problems. Liane Shekter-Smith, MDEQ‘s Chief of the Office of Drinking Water and Municipal Assistance, emailed other MDEQ employees to suggest that the Flint River water was “slough[ing] material off of pipes” in the distribution system rather than “depositing material or coating pipes[.]” She opined that “[t]his may continue for a while until things stabilize.”
Soon, an EPA employee became involved in the discussion as well. Miguel Del Toral, the EPA‘s regional drinking water regulations manager, reached out to the MDEQ on February 27, 2015, to voice his concerns about the possibility of elevated lead levels. Del Toral informed Michael Prysby, an MDEQ engineer, that the MDEQ‘s specific method for testing lead levels in Flint residents’ tap water may be producing test results that underestimated lead levels. He also asked whether the water treatment plant was using optimized corrosion control, which he noted was “required” to be in place. That same day, Stephen Busch, an MDEQ District Supervisor in Lansing, responded to Del Toral stating that the water treatment plant had an “optimized corrosion control program.” Two months later, an unidentified individual from the MDEQ informed the EPA that it had no optimized corrosion control treatment in place.
In April 2015, Del Toral again reached out to the MDEQ, this time issuing a memorandum that expressed concern with the lack of corrosion control and Flint‘s water testing methods. He also told MDEQ employees Busch and Prysby that he believed the MDEQ‘s sampling procedures did not properly account for the presence of lead service lines. Therefore, Del Toral said he “worried that the whole town may have much higher lead levels than the
A few months later, plaintiffs say that Busch “claimed that ‘almost all’ homes in the pool sampled for lead in Flint had lead services lines,” even though this was untrue. Plaintiffs do not indicate to whom Busch made that statement. Later in July, a reporter broke a story announcing that Flint‘s water was contaminated with lead, citing Del Toral‘s April 2015 memorandum. In response, Bradley Wurfel, MDEQ‘s Communications Director, publicly stated that “anyone who is concerned about lead in the drinking water in Flint can relax.”
That same month, the EPA and the MDEQ had a conference call to discuss MDEQ‘s compliance with the Lead and Copper Rule. According to plaintiffs, the EPA pushed for Flint to use optimized corrosion control, but the MDEQ insisted that doing so was “unnecessary and premature.” In a follow-up email, MDEQ employee Shekter-Smith asked the EPA to provide a written concurrence that the City was in compliance with the Lead and Copper Rule.
Also in July, MDEQ employees exchanged a series of internal emails discussing how water tests performed by outside sources, which showed that Flint‘s drinking water had impermissibly high lead levels, compared with the MDEQ‘s own water testing results, which showed lower lead levels. When a report by a Virginia Tech professor revealing high lead levels surfaced in September 2015, Wurfel made public statements challenging the report and asserting that Flint‘s drinking water remained in compliance with federal and state laws. During this time, other MDEQ employees maintained that Flint was not required to use corrosion control until unacceptably high levels of lead had already appeared in the water, which they believed was not yet the case.
Later in September, Croft emailed “numerous officials” to report that the City of Flint had “officially returned to compliance with the Michigan
The MDHHS also began to take a closer look at the outside studies showing high lead levels in Flint‘s water. Though at least a few MDHHS employees became aware of an increase in blood lead levels in Flint‘s children in July, the increase was attributed to “seasonal variation”—a summer phenomenon in which children‘s blood lead levels naturally increase because of more frequent exposure to lead in soil and other seasonal factors. But in September, MDHHS employees began to take a closer look. They circulated a study conducted by a pediatrician at a Flint hospital, Dr. Mona Hanna-Attisha, which showed elevated blood lead levels in children. The next day, one MDHHS employee attempted to recreate the study but came up with different numbers. The City of Flint also issued a health advisory telling residents to flush pipes and install filters to prevent lead poisoning. On October 1, 2015, the MDHHS officially confirmed Dr. Hanna-Attisha‘s results.
Finally, on October 16, 2015, Flint reconnected to the DWSD. Two days later, MDEQ Director Daniel Wyant admitted to Michigan‘s governor that MDEQ “staff made a mistake while working with the City of Flint. Simply stated, staff employed a federal (corrosion control) treatment protocol they believed was appropriate, and it was not.” Several MDEQ employees subsequently resigned or were suspended without pay. On January 21, 2016, the EPA issued an Emergency Order identifying the primary cause of increased lead levels in Flint‘s water as being a lack of corrosion control treatment after the City‘s switch to the Flint River.
II
To make it past qualified immunity‘s first prong, a plaintiff must plead facts showing that a government official violated a constitutional right. al-Kidd, 563 U.S. at 735. Plaintiffs assert that their claim falls under the fundamental right to bodily integrity, a right guaranteed by the substantive component of the
To demonstrate why, I turn back to the allegations in plaintiffs’ complaint. The complaint is particularly important here, because substantive due process is an undefined area where “guideposts for responsible decisionmaking . . . are scarce and open-ended” and “judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.” Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992). We must, therefore, “focus on the allegations in the complaint to determine how [plaintiffs‘] describe[] the constitutional right at stake and what [defendants] allegedly did to deprive [plaintiffs] of that right.” Id. The majority pays lip service to that command but abandons it in the analysis. Although the majority describes the bodily integrity right at stake as the right to be free from a government official “knowingly and intentionally introducing life-threatening substances into individuals without their consent,” the right plaintiffs allege was violated is altogether different.
Plaintiffs’ complaint specifically states: “In providing Plaintiffs with contaminated water, and/or causing Plaintiffs to consume that water, Defendants violated Plaintiffs’ right to bodily integrity, insofar as Defendants failed to protect Plaintiffs from a foreseeable risk of harm from the exposure to lead contaminated water.” That claim makes clear where defendants allegedly went wrong. It was not in knowingly introducing life-threatening substances into plaintiffs’ bodies against their will; it was in allegedly “fail[ing] to protect plaintiffs from a foreseeable risk of harm from the exposure to lead contaminated water” (emphasis added).
A
The first roadblock to plaintiffs’ due process claim is that the conduct alleged fails to meet the “high” conscience-shocking standard. Range, 763 F.3d at 589. Plaintiffs’ “failure to protect from foreseeable harm” theory sounds in classic negligence. But negligence—even gross negligence—does not implicate the
In all cases, we are required to perform an “exact analysis of the circumstances before” condemning “any abuse of power . . . as conscience shocking.” Lewis, 523 U.S. 850. The majority eschews that requirement. Instead of reviewing the defendant-specific allegations in context, it cherry-picks a few “examples” from plaintiffs’ complaint and strings them together to form a narrative not told by plaintiffs. In compounding that error, the majority draws inconsistent, even contradictory, conclusions about the level of culpability the allegations entail. In one breath, the majority says plaintiffs plausibly allege that defendants “knowingly and intentionally introduc[ed] life-threatening substances into individuals without their consent.” But in another breath, it says “[t]here is no allegation defendants intended to harm Flint residents.” In yet another, the majority says defendants “systematically contaminate[d]” the Flint community. I will leave it to the reader to reconcile how conduct may constitute a knowing, intentional, and systematic attempt to contaminate another without also being motivated by an intent to harm that person. I, for one, fail to follow that logic. It is only by this imprecise analysis that the majority concludes these defendants acted in a conscience-shocking manner.
A more exact, defendant-specific analysis shows otherwise. The following analysis reveals that plaintiffs do not allege the additional “callous disregard or intent to injure” element that applies to non-custodial deliberate-indifference claims. I review the allegations against Flint‘s Emergency Managers (Darnell Earley and Gerald Ambrose),2 Flint‘s Department of Public Works Director (Howard Croft), and the MDEQ employees (Liane Shekter-Smith, Stephen Busch, Michael Prysby, and Bradley Wurfel) in turn. Additionally, I explain why I agree with the majority that the case against the MDHHS executives and employees (Nick Lyon, Eden Wells, Nancy Peeler, and Robert Scott) and the MDEQ Director (Daniel Wyant) must be dismissed.
Flint Emergency Managers Darnell Earley and Gerald Ambrose. First, consider plaintiffs’ allegations against Emergency Managers Earley and Ambrose. According to plaintiffs, Earley “rushed” the switch to the Flint River to meet a “self-imposed” and “aggressive” deadline as a cost-saving measure without ensuring the water treatment plant was adequately equipped to treat the water. Ambrose later rejected opportunities to return to the DWSD despite residents’ complaints and other evidence pointing to the water‘s high corrosivity. The majority concludes that both Emergency Managers approved the initial and ongoing use of the Flint River as a water source despite knowing the City‘s water treatment plant was not equipped to treat the water. Not so.
Consider the Emergency Managers’ decisions in context, starting with the initial switch under Earley‘s leadership. Recall that before the switch, the City consulted with the Lockwood engineering firm to ready its treatment plant. The engineering firm did not advise the City to implement corrosion control. Neither did the MDEQ. In fact, the MDEQ informed the City that it was “satisfied with the water treatment plant‘s ability to treat water from the Flint River.” And although the MDEQ noted that the KWA was “a higher quality source [of] water” than the Flint River, it never indicated that use of the Flint River would place residents at risk of lead contamination. Fast-forward to early 2015, when Ambrose rejected two opportunities to reconnect to the DWSD. At that time, the City had hired the Veolia engineering firm to review its water quality and treatment procedures. After a 160-hour assessment, Veolia concluded that Flint‘s water complied with applicable laws and did not advise Flint to use corrosion control.
The Emergency Managers’ reliance on expert advice does not demonstrate a callous disregard for or intent to injure plaintiffs. Earley and Ambrose were budget specialists, not water treatment experts. They did not oversee the day-to-day operations of the water treatment plant, nor did they carry any responsibility for ensuring its compliance with federal or state laws. Accordingly, their reliance on the industry and regulatory experts who were tasked with preparing the water treatment and ensuring its compliance with safe drinking water laws does not demonstrate conscience-shocking behavior.
Finally, the majority asserts that concluding that Ambrose and Earley were relying on experts places an inappropriately “benign construction on the factual allegations.” Yet the majority cites no factual allegations supporting any other conclusion. Instead, it accepts plaintiffs’ various “labels and conclusions”—for instance, that Ambrose and Earley “knew” about risks to Flint residents—as sufficient support for their claim. This cuts against the Supreme Court‘s directive that plaintiffs allege facts, not conclusions, to state entitlement to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The bottom line is that plaintiffs do not allege that any industry or regulatory expert informed Earley or Ambrose that the City‘s water treatment plant was not equipped to treat Flint River water or that the water was not being treated with corrosion control. In fact, plaintiffs allege just the opposite. Professional engineering firms and the MDEQ repeatedly affirmed that Flint‘s drinking water complied with applicable law. Accordingly, the Emergency Managers’ approval of the plant‘s initial and
2
MDEQ employees Liane Shekter-Smith, Stephen Busch, Michael Prysby, and Bradley Wurfel. Next consider the claims against the various MDEQ employees. Plaintiffs contend that every MDEQ employee misinterpreted the Lead and Copper Rule. Under the MDEQ‘s erroneous interpretation of the Rule, the City could begin distributing Flint River water to residents and then conduct two six-month rounds of lead testing before treating the water with corrosion control. Without immediate treatment, the water accumulated lead as it flowed through the City‘s pipes. And over time, plaintiffs’ drinking water became contaminated with allegedly unhealthy levels of lead. Plaintiffs equate the MDEQ‘s misinterpretation of the Lead and Copper Rule‘s corrosion-control requirements with conscience-shocking behavior that caused plaintiffs’ exposure to lead.
As gravely erroneous as the MDEQ‘s interpretation of the Rule appears in hindsight, however, there is no legal support for the conclusion that it amounted to conscience-shocking conduct. On the contrary, a mistake of law is the classic type of conduct that qualified immunity protects from suit. Pearson v. Callahan, 555 U.S. 223, 231 (2009) (“The protection of qualified immunity applies regardless of whether the government official‘s error is ‘a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.‘” (citation omitted)); Gavitt v. Born, 835 F.3d 623, 640–41 (6th Cir. 2016). That should end the case against these defendants.
The majority concludes, however, that the MDEQ‘s misinterpretation may have been intentional. According to the majority, plaintiffs’ allegations present the “bleak[]” possibility that the MDEQ may have used Flint residents as “guinea pigs” to test lead-compliance theories unsupported by the law. None of plaintiffs’ factual allegations make that inference a reasonable one. This is not a conspiracy case. Plaintiffs do not assert that the MDEQ employees maliciously agreed to a certain incorrect interpretation of the Lead and Copper Rule to exempt
Still, the majority takes plaintiffs’ allegations a step further, making the sweeping assertion that the MDEQ employees “created” the Flint Water Crisis by knowingly approving distribution of Flint River water with the use of an ill-prepared water treatment plant and then deceiving the public about the consequences of that decision. The allegations do not support that theory, however.
First, plaintiffs do not allege facts showing that Shekter-Smith, Busch, Prysby, or Wurfel personally approved the City‘s use of the Flint River and the Flint water treatment plant. Rather, plaintiffs say that the decision was made by Kurtz, Flint‘s 2013 Emergency Manager, with approval from the State‘s treasurer. Moreover, plaintiffs fail to allege that any of these MDEQ employees knew that the Flint water treatment plant was incapable of treating Flint River water. To be sure, plaintiffs allege that “all Defendants” were aware of a 2011 “feasibility report” rejecting the use of the Flint River at the time because of costs associated with bringing the treatment plant in compliance with “applicable standards.” But plaintiffs provide no further context surrounding the report‘s creation and who knew about its contents. On the other hand, plaintiffs allege that, prior to the switch, Flint‘s Utilities Administrator told Prysby and Busch that the water treatment plant had “developed a system of redundant electrical systems, treatment processes and adequate finished water storage” after consulting with the MDEQ and an engineering firm. And after that, Busch informed Wurfel that the MDEQ was “satisfied with the City‘s ability to treat water from the Flint River[.]” These allegations thus do not suggest that any MDEQ employee knew the treatment plant was actually incapable of properly treating Flint River water and approved its use anyway.
Prysby. Take Prysby, an MDEQ engineer, first. The majority latches on to a single email sent from Prysby to a couple other MDEQ employees in October 2014. In it, Prysby opines that the fact that a General Motors engine-manufacturing plant stopped using Flint River water because of its corrosive nature did not mean that the water should be labeled “corrosive” from a public health standpoint.” According to the majority, that statement shows that Prysby was more interested in spinning the water‘s corrosive nature as unconnected to public health instead of investigating problems with the water. But a “[n]egligent failure to investigate . . . does not violate due process.” Wilson v. Lawrence Cty., 260 F.3d 946, 955 (8th Cir. 2001) (citations omitted). And no other allegation against Prysby demonstrates anything more than a failure to act—plaintiffs’ remaining allegations name Prysby as merely a recipient of various emails but they do not identify any specific actions taken by him. Plaintiffs thus do not plausibly allege that Prysby created the Flint Water Crisis and then deceived the public about it.
Busch. Nor do the allegations support such a finding when it comes to Busch. The complaint references a number of Busch-authored emails, but the majority references only two internal emails exchanged between MDEQ employees and between Busch and EPA employee Del Toral. The majority concludes that Busch lied in the latter email, when he informed Del Toral in February 2015 that Flint‘s water treatment plant “had an optimized corrosion control program” in place, which demonstrates conscience-shocking behavior. But the complaint contains no factual allegations supporting the conclusion that Busch‘s statement was a lie. Flint did have a corrosion control “program” in place—a program that permitted a two-round testing period after the plant became operational and before plant administrators chose a particular method of corrosion control treatment. The MDEQ believed the Lead and Copper Rule allowed for that type of program. Even though the MDEQ was wrong, that error does not support the allegation that Busch lied to the EPA about the existence of a corrosion control program. Moreover, plaintiffs do not allege that Busch personally knew that Flint was distributing water without corrosion control treatment until April 2015. So even if Busch meant “treatment” when
Shekter-Smith. The allegations likewise fail to demonstrate that Shekter-Smith acted in a conscience-shocking manner. The majority focuses on two of Shekter-Smith‘s emails.
In the first, Shekter-Smith requested that an EPA official indicate his agreement “that the city [was] in compliance with the lead and copper rule.” That, she explained, would help the MDEQ “distinguish between [its] goals to address important public health issues separately from the compliance requirements of the actual rule[.]” The majority‘s take on that email is that Shekter-Smith cared more about “technical compliance” with the Lead and Copper than addressing an urgent health crisis. Whatever weight Shekter-Smith actually assigned each of those concerns, all that her email exhibits is an attempt to address them separately. This is hardly conscience-shocking conduct.
In the second email, Shekter-Smith responded to a question from Jon Allan, Director of the Michigan Office of the Great Lakes, about the MDEQ‘s statewide goals related to health-based standards. Under those goals, “98 percent of population [sic] served by community water systems” and “90 percent of the non-community water systems” would be providing “drinking water that meets all health-based standards” by 2020. Allan asked why MDEQ had any goal less than “100 percent,” saying, “How many Flints Do you intend to allow???” Shekter-Smith replied:
The balance here is between what is realistic and what is ideal. Of course, everyone wants 100 percent compliance. The reality, however is that it‘s impossible. It‘s not that we ‘allow’ a Flint to occur; circumstances happen. Water mains break, systems lose pressure, bacteria gets into the system, regulations change and systems that were in compliance no longer are, etc. Do we want to put goal [sic] in black and white that cannot be met but sounds good?
Or do we want to establish a goal that challenges us but can actually be accomplished? Perhaps there‘s a middle ground?
This second email likewise shows nothing more than Shekter-Smith‘s concern with meeting agency goals—in this instance, goals related to the statewide administration of safe drinking water. The propriety of certain agency goals, however, falls outside the purview of the
Wurfel. Of all the MDEQ employees, the majority‘s intentional-public-deception theory really implicates only one individual: Wurfel, the Department‘s Director of Communications. He is the only MDEQ employee alleged to have made public statements about Flint‘s drinking water. The majority characterizes Wurfel‘s statements as attempts to demean, belittle, and aggressively dampen challenges to the government‘s assertion that Flint‘s drinking water was safe. But however his statements may be characterized, they were not conscience-shocking.
His first statement came in July 2015, after a reporter broke a story claiming that there was lead in Flint‘s drinking water. Wurfel publicly responded by saying that “anyone who is concerned about lead in the drinking water in Flint can relax.” Then, in September 2015, after two doctors released separate reports about studies showing unsafe levels of lead in Flint residents’ water, Wurfel placed the blame for the lead on the service lines in residents’ homes even though there was, according to plaintiffs, evidence that at least some residents’ service lines were plastic. Wurfel later called the doctors’ testing results “perplex[ing],” explaining that they did not match the City‘s testing results, which he asserted were “done according to state and federal sampling guidelines and analyzed by certified labs.” On two other occasions in September, Wurfel asserted the doctors’ studies were inaccurate.
The allegations against the MDEQ employees, in sum, do not plausibly demonstrate a callous disregard for or intent to injure plaintiffs, let alone any effort to “systematically contaminate” the Flint community. What they show instead is a series of internal emails and a handful of public statements regarding the requirements of the Lead and Copper Rule and the water‘s safety. Even if the MDEQ employees made mistakes in interpreting the Rule, those mistakes are not conscience-shocking.3
Flint Director of Department of Public Works, Howard Croft. Next, I turn to the allegations against Croft, which come nowhere near the high conscience-shocking standard. Plaintiffs assert that Croft “caused and allowed unsafe water to be delivered to Flint‘s residents,” but they fail to allege that Croft was actually involved in the City‘s decision to use to the Flint River as a water source or that he played any part in determining whether and when the treatment plant would use corrosion control. The majority finds that single, conclusory allegation sufficient to make the plausible inference that Croft played an affirmative role in approving the transition to the Flint River. What makes that conclusion especially confounding is the majority‘s simultaneous rejection of allegations against other defendants that are just as conclusory as this one. For example, the majority finds that plaintiffs’ allegation that MDHHS executive Nick Lyon “participated in, directed, and/or oversaw the department‘s efforts to hide information to save face, and to obstruct and discredit the efforts of outside researchers” as the kind of “bare” and “chimerical” assertions Iqbal mandates be set aside. But the allegation that Croft “caused and allowed unsafe water to be delivered to Flint‘s residents” is not any more detailed than the “chimerical” assertion against Lyon. There are only two other allegations against Croft. The first is that, at an unidentified point in time, he said in a press release that the City‘s water was “of the high quality that Flint customers have come to expect.” The second is that in September 2015, he emailed “numerous officials” to inform them that the MDEQ had confirmed Flint‘s compliance with “EPA standards.” These allegations do not demonstrate that Croft engaged in any behavior that may fairly be construed as conscience-shocking.
4
MDHHS executives Nick Lyon and Eden Wells; MDHHS employees Nancy Peeler and Robert Scott; and MDEQ Director Daniel Wyant. Finally, a brief word about the MDHHS executives, the MDHHS employees, and MDEQ Director Wyant, all of whom the majority correctly dismisses from this case. I agree with the majority that most of the allegations against the MDHHS executives and employees have to do with negligence (i.e., failing to timely notify the public of the possibility of increased lead in the water) rather than any affirmative action
And as to MDEQ Director Wyant, I concur with the majority‘s conclusion that none of plaintiffs’ allegations show that he was personally involved with the decision to use the Flint River as a water source or otherwise engaged in any conscience-shocking behavior.
Accordingly, I join the majority in concluding that plaintiffs’ allegations against these defendants engaged in conscience-shocking behavior or otherwise infringed on plaintiffs’ due process rights.
For all of these reasons, I do not believe plaintiffs’ allegations suggest that any individual defendant‘s actions or failures to act shock the conscience. This presents a significant roadblock that seems to prevent plaintiffs from establishing a violation of substantive due process and thus proceeding past the first prong of the qualified-immunity analysis.
B
The second roadblock to plaintiffs’ substantive-due-process claim—which also suggests they cannot proceed past qualified immunity‘s first prong—is that their claim does not appear to arise from the deprivation of a recognized fundamental right to bodily integrity. As should be clear by now, the right reconstructed by the majority is entirely distinct from the one asserted in plaintiffs’ complaint and is thus, unsurprisingly, devoid of support from plaintiffs’ factual allegations.
So what is the bodily integrity right plaintiffs allege? According to the complaint, defendants’ alleged conduct amounted to a failure to protect from exposure to lead-contaminated water. But although plaintiffs frame the claim that way in their complaint, they insist their claim does not flow from a right to receive clean water. Plaintiffs are right to avoid advancing that theory because the
The majority avoids grappling with that issue by turning, inappropriately, to abstract concepts of personal autonomy and informed consent that it divines from several inapposite cases. In so doing, the majority‘s analysis runs contrary to the “restrained methodology” outlined by the Supreme Court in Washington v. Glucksberg, 521 U.S. 702, 721 (1997). To apply that methodology, we look to “concrete examples involving fundamental rights found to be deeply rooted in our legal tradition.” Id. at 722. Those examples reveal the “outlines of the ‘liberty’ [interests] specially protected by the
In Glucksberg, the Court showed us how to use that “restrained methodology.” There, the Supreme Court dismissed a claim by state physicians that the
Likewise, no concrete examples arising from the established bodily integrity jurisprudence or from our Nation‘s history or traditions support the right asserted here—protection from policy or regulatory decisions or public statements that, somewhere down the line, result in exposure to contaminated water.
We have previously interpreted the bodily integrity right as “the right against forcible physical intrusions of the body by the government.” Planned Parenthood Sw. Ohio Region v. DeWine, 696 F.3d 490, 506 (6th Cir. 2012) (citations omitted). The right is outlined most explicitly in Rochin v. California, 342 U.S. 165 (1952). There, the Court held that the Due Process Clause prohibits a state from securing evidence in support of a conviction by using a vomit-inducing solution to forcibly extract the evidence from a suspect‘s stomach. Id. at 172–74. That intrusion on an individual‘s body, the Court explained, was “too close to the rack and the screw” to be constitutionally permissible. Id. at 172. Since then, the Court has concluded that similar types of physically intrusive law enforcement searches implicate the right to bodily integrity. Those include a “compelled physical intrusion beneath [a suspect‘s] skin and into [the] veins to obtain a” blood sample, Missouri v. McNeely, 569 U.S. 141, 148 (2013), and a nonconsensual surgery to retrieve a bullet from a suspect‘s chest. Winston v. Lee, 470 U.S. 753, 767 (1985). In this Circuit, we have concluded that obtaining evidence by “anally prob[ing]” an individual “without his consent” when he was “naked and handcuffed, . . . paralyzed, [and] intubated” was such a grave bodily integrity violation that it rendered the Fourth Amendment search unreasonable. United States v. Booker, 728 F.3d 535, 537, 547 (6th Cir. 2013) (citation omitted).
In the medical context, too, the Court has underscored the right‘s guarantee against direct, physical intrusions into an individual‘s body at the hands of a government official. In Washington v. Harper, for instance, the Court emphasized the significance of an inmate‘s “liberty interest in avoiding the unwanted administration of antipsychotic drugs.” 494 U.S. 210, 221, 223 (1990). Riggins v. Nevada, 504 U.S. 127, 135 (1992) affirmed the magnitude of that
These cases delineate the contours of the right to bodily integrity in terms of intrusive searches or forced medication. None of them is compatible with the “careful description” of the right at issue here: protection from exposure to lead-contaminated water allegedly caused by policy or regulatory decisions or statements.4 Even the few district court or sister circuit cases cited by the majority do not clarify the contours of plaintiffs’ alleged right. All except one of those cases deal with medical professionals performing government-sponsored invasive procedures or harmful experiments on unsuspecting patients.5 The last one deals with police
In sum, because the conduct alleged does not appear to rise to the level of conscience-shocking, and because I believe it does not demonstrate the deprivation of a recognized fundamental right, I have serious doubts about whether plaintiffs state a substantive due process claim sufficient to carry them past prong one of the qualified-immunity analysis.
III
The second prong of the qualified-immunity analysis looks to whether the alleged constitutional right was “clearly established” at the time the government official acted. al-Kidd, 563 U.S. at 735. This presents the most fundamental problem for plaintiffs’ case. To the extent plaintiffs do successfully allege the violation of a constitutional right, the novelty of that right just shows that it was not clearly established at the time the alleged events unfolded. Therefore, the doctrine of qualified immunity shields every defendant from suit.
For a right to be clearly established, its contours must be “sufficiently clear that every reasonable official would have understood that what he is doing violates that right[.]” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (emphasis added) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). Because “[t]he dispositive question is whether the violative nature of particular conduct is clearly established,” we look to how existing precedent applies to each
Here, that means plaintiffs must be able to point to controlling cases extending substantive due process protections to the following individuals:
- A high-level government executive who makes a decision (or proceeds with a project) while relying on expert opinions that the decision or project is lawful and safe (Earley and Ambrose).
- A regulator who misinterprets environmental laws and provides bad advice to government policymakers (MDEQ employees).
- A city or state regulator who, based on the erroneous advice of other regulators, publicly announces that a government-provided resource is safe for consumption when it is not (Wurfel, Croft, or others who made public statements).
As the majority acknowledges, plaintiffs point to no factually similar controlling case in which a court found that such conduct violated a constitutional right to bodily integrity. “This alone should have been an important indication to the majority that [the defendants‘] conduct did not violate [plaintiffs‘] ‘clearly established’ right.” White, 137 S. Ct. at 552.
In fact, in case after case around the country, courts have consistently rejected substantive-due-process claims based on the type of conduct alleged here. Branch v. Christie is one such case. 2018 WL 337751 (D.N.J. Jan. 8, 2018). Branch dealt with a bodily integrity claim brought by parents of New Jersey public school children against several state officials for “knowingly expos[ing] the children . . . to water that was contaminated with unsafe levels of lead,” and “concoct[ing] a scheme to cover up the health hazard.” Id. at *1. The parents said that state employees caused the lead contamination by “cancel[ling] work orders to change outdated and lead-saturated filters,” and “allowing several filters to be used for upwards of five
Here, as in Branch, government officials allegedly exposed others to water contaminated with lead. And here, as in Branch, certain government officials allegedly attempted to hide the lead contamination. The Branch court could find no authority indicating that such conduct violated a substantive due process right—not even the Supreme Court‘s bodily integrity cases were close to on point. That court‘s conclusion shows how unclear it would have been for the regulators and policymakers in this case to have anticipated that their actions might have violated an established bodily integrity right.
Coshow v. City of Escondido, a state court case, also sheds light on the novelty of plaintiffs’ asserted right. 132 Cal. App. 4th 687 (Cal. Ct. App. 2005). There, the California Court of Appeals rejected residents’ bodily integrity claims against the City of Escondido and California‘s Department of Health Services over their decision to add fluoride to public drinking water. Id. at 698. The residents asserted that adding fluoride to the water exposed the public to unnecessary health risks. Id. But the court held that, just as the Constitution did not guarantee any “right to a healthful or contaminate-free environment,” it likewise did not guarantee a right to receive fluoride-free drinking water from the City. Id. at 709–10. This was so even though the fluoride might have contained “trace levels of lead and arsenic[.]” Id. at 700. The court reasoned that the residents’ claim came down to an asserted right to receive “public drinking water of a certain quality.” Id. at 708–09. And it held that the “mere novelty” of that claim indicated it was not “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Id. (quoting United States v. Salerno, 481 U.S. 739, 751 (1987)). Accordingly,
Just as in Coshow, the novelty of plaintiffs’ claim here shows that it is not clearly established. The majority attempts to draw a disingenuous distinction between this case and Coshow. It reasons that, in Coshow, adding fluoride to drinking water served the beneficial purpose of preventing tooth decay while, in this case, adding lead to water served no countervailing governmental interest. I certainly do not quibble with the premise that adding lead to water furthers no discernable beneficial purpose. But that is not what happened here. No government official made a conscious decision to introduce lead into Flint‘s water. Instead, the Emergency Managers made a conscious and legitimate policy decision to switch to the Flint River as a water source to cut costs—and they did so in reliance on guidance from engineering firms and the MDEQ. That hardly demonstrates that the decision to switch to the Flint River was made with no countervailing governmental interest in mind. The government officials’ resource-allocation decisions during a budgetary crisis did not constitute obvious violations of the right to bodily integrity because of the grave health consequences they allegedly caused in hindsight.
Moreover, that some governmental officials made public statements about the safety of Flint‘s water does not make the unlawfulness of any defendant‘s conduct any more obvious. As the Second Circuit put it, “no court has ever held a government official liable for denying substantive due process by issuing press releases or making public statements“—regardless of whether the public statements were true or false. Benzman v. Whitman, 523 F.3d 119, 125, 127 (2d Cir. 2008) (rejecting residents’ substantive due process claims against EPA officials for making “substantially exaggerated” statements regarding air quality after the September 11 terrorist attacks). Benzman invoked the principles underlying a similar post-September-11 case, Lombardi v. Whitman, 485 F.3d 73 (2d Cir. 2007). In Lombardi, workers who performed search, rescue, and clean-up services at the World Trade Center site in the aftermath of the terrorist attacks alleged that the EPA violated their right to bodily integrity by falsely assuring them that it would be safe to work without respiratory protection. Id. at 74. Relying on those assurances, several workers went without that protection and later suffered adverse health effects. Id. at 75. Without definitively deciding whether the alleged false assurances interfered with the workers’
This case implicates similar, albeit not identical, concerns to those invoked in Lombardi and Benzman. As the majority points out, there is no allegation that any defendant here intended to harm a Flint resident. And like the EPA regulators in Lombardi and Benzman, Wurfel made public statements pursuant to his official role as MDEQ‘s Director of Communications. To be sure, those statements countered evidence about Flint water‘s lead levels presented in two separate outside studies. But they were also consistent with information provided to Wurfel by officials from his own department. That information was, in retrospect, misguided. Plaintiffs do not assert, however, that Wurfel made any knowingly false statements for the purpose of causing harm. The same goes for Croft. When he issued a press release asserting that Flint‘s water was of a “high quality,” at least one engineering firm and the MDEQ had concluded that the water treatment plant was capable of adequately treating Flint‘s water. In other words, the allegations do not show that Croft made a knowingly false public statement for the purpose of causing harm. Given the absence of any such allegation, and because no court has ever concluded that the Due Process Clause covers the public statements of government officials, it can hardly have been apparent to Wurfel or Croft that their statements clearly violated plaintiffs’ due process right to bodily integrity.
Due to the lack of controlling precedent and the many cases suggesting substantive due process does not protect plaintiffs’ asserted right, the majority again falls back on its exaggerated characterization of defendant‘s actions and statements, likening them to the “systematic” poisoning of an entire community. Advancing that narrative, the majority concludes that this case is one of the “easy” ones that should never have arisen in the first place. See United States v. Lanier, 520 U.S. 259, 271 (1997). “Of course, in an obvious case, [general] standards,” (or reasoning) “can ‘clearly establish’ the answer, even without a body of relevant case law.” Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (citation omitted). But this is not one of those cases. As already demonstrated, the majority‘s systematic poisoning narrative has no basis in plaintiffs’ factual allegations.7 This is not a case about a government official knowingly and intentionally introducing a known contaminant into another‘s body without that person‘s consent. It is a case about a series of erroneous and unfortunate policy and regulatory decisions and statements that, taken together, allegedly caused plaintiffs to be exposed to contaminated water.
The proper framing of the factual narrative exposes how far off base are the bodily integrity cases relied upon by the majority. How could those cases have provided any practical guidance to government officials like Earley, Ambrose, Croft, or the MDEQ employees? For instance, how should Rochin‘s prohibition against induced vomiting to obtain evidence have informed Earley‘s oversight of the switch from the DWSD to the Flint River and what professional opinions he was entitled to rely upon when the City made the switch? And how should it have informed Ambrose‘s decision to continue using the Flint River as a water source and what professional opinions he was entitled to rely upon in doing so? What about the MDEQ employees? How should Riggins‘s limits on the state‘s ability to administer antipsychotic drugs to pretrial detainees have changed what kind of advice the MDEQ employees gave the City about federal corrosion-control requirements? Or what about the fact that Cruzan allows a state
And although the right plaintiffs allege is not established, various courts have certainly considered it—and rejected it. See Branch, 2018 WL 337751; Coshow, 132 Cal. App. 4th 687; Benzman, 523 F.3d 119; Lombardi, 485 F.3d 73.8 But ignoring those cases, the majority turns, curiously, to a few federal and state cases arising from the Flint Water Crisis itself. The majority begins its opinion with the proclamation that it joins a few decisions concluding that some of these same defendants, and some others, violated various Flint residents’ substantive due process rights. Those cases offer weak support for the majority‘s position. Oddly, one of the decisions it cites is the very case before us on appeal, Guertin v. Michigan, 2017 WL 2418007 (E.D. Mich. June 4, 2017). The second is authored by the same judge as authored Guertin, and its bodily integrity analysis block-quotes more than 2,000 words from the Guertin analysis. In re Flint Water Cases, 329 F. Supp. 3d 369, 397–400 (E.D. Mich. 2018), vacated on other grounds (Nov. 9, 2018). And that case appears to follow the same analytical errors as the state case to come before it—that is, just like the state case, it makes several logical leaps to conclude that policy and regulatory decisions and statements are on par with an intentional introduction of a contaminant into another‘s body. Mays v. Snyder, 916 N.W.2d 227 (Mich. Ct. App. 2018); Mays v. Snyder, No. 16-000017-MM (Mich. Ct. Cl. Oct. 26, 2016). These few cases and their
In sum, the majority‘s opinion is a broad expansion of substantive due process, which contradicts the traditional understanding that due process does not “supplant traditional tort law” or impose a duty on the government to ensure environmental safety. Collins, 503 U.S. at 126 (citation omitted). What is more, it effectively “convert[s] the rule of qualified immunity . . . into a rule of virtually unqualified liability” for government officials making policy or regulatory decisions or statements that have any effect on a publicly consumed environmental resource. White, 137 S. Ct. at 552 (ellipses in original) (citation omitted). That turns qualified immunity on its head.
IV
The majority‘s conclusion that the defendants violated plaintiffs’ clearly established right to bodily integrity has some facial appeal, of course, because we sympathize with the Flint residents’ plight. It is wrong, however, on both the facts and the law. For all of the above reasons, I join the majority in its denial of sovereign immunity to the City of Flint and in dismissing various defendants from the case. But I dissent from its denial of qualified immunity to Earley, Ambrose, Croft, Shekter-Smith, Busch, Prysby, and Wurfel.