“Defendants created the Flint Water environmental disaster and then intentionally attempted to cover-up their grievous decision. Their actions shock our conscience.”

The United States Sixth Circuit has rejected Flint officials’ appeal and claim that they are entitled to immunity in a bodily integrity claim brought by a mother and her daughter who drank Flint’s contaminated water. The immunity rejection means a lawsuit brought by Flint resident Shari Guertin may proceed.

Guertin originally sued Michigan Governor Rick Snyder along with various state of Michigan and Flint municipal officials claiming they caused lead in the town’s water to rise and then actively worked to conceal the fact, ultimately causing bodily harm to Guertin and her daughter.

U.S. District Judge Judith Levy dismissed the majority of Guertin’s claims, ruling that neither Governor Snyder nor the state employees could be sued in their official capacities. However, Levy allowed Guertin’s claim of bodily integrity to proceed after determining the city’s conduct was “so egregious as to shock the conscience.”

Flint and state environmental officials appealed Levy’s decision claiming they were entitled to government immunity.

According to Courthouse News, Lawyers for the government officials claimed city officials were “trying to do the best they could” in a quickly changing environment and that regulators were “not acting with malice or force,” thus they couldn’t be held liable.

Ultimately, the Sixth Circuit sided with Guertin in a two to one vote, refusing to grant immunity to Flint officials.

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

Plaintiffs “assert MDEQ [Michigan Department of Environmental Quality] viewed Flint residents as ‘guinea pigs’ for a year to test lead-compliance theories that were unsupported and unauthorized by the EPA just to pass time until water began flowing from a new water authority,” Judge Griffin stated. “To be sure, plaintiffs’ view must be based on reasonable inferences from factual allegations. The district court correctly found that it is.”

Dissenting Judge David McKeague said the majority opinion “tells a story of intentional poisoning based on a grossly exaggerated version of plaintiffs’ allegations.”

McKeague warned, “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.”

The Flint water crisis began in 2014 when city officials switched the municipal’s water source from Lake Huron and the Detroit River to the cheaper Flint River. Flint officials knew the Flint River was more highly corrosive but failed to add chemicals to counteract the rivers corrosivity. As a result, lead leaked from municipal pipes into the water supply resulting in high rates of lead in children and residents.

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