From [Jurist] The US Court of Appeals for the Sixth Circuit on Friday ruled against the city of Flint and several Michigan state officials for violation of its residents’ rights to bodily integrity as guaranteed by the Substantive Due Process Clause of the Fourteenth Amendment.

The court found that defendants’ decisions during the Flint Water Crises caused Flint residents injuries and damages from drinking and bathing in the lead-contaminated water. In the court’s words, “the crisis was preventable and predictable because the city had extended opportunities to do better.”

The court also held that the city of Flint is not entitled to Eleventh Amendment immunity despite the takeover by the state of Michigan pursuant to Michigan’s “Emergency Manager” law that transformed the city into an arm of the state. The court based its decision on four factors: the State’s potential liability against the city; the degree of state control over the city’s actions; the appointment of the emergency manager; and whether the city’s functions fell within the traditional purview of state or local government. Among these factors, only the appointment of the emergency manager weighed in the city’s favor.

As the state of Michigan argued, “the City of Flint’s functions are ‘within the traditional purview of local government’ because the City of Flint is a local government.” The city of Flint even admits that “the day-to-day operations of a waterworks generally fall within the purview of local authorities.”

The court explained,

“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municipal water supply from the Detroit Water and Sewerage Department (DWSD) to the Flint River to be processed by an outdated and previously mothballed water treatment plant.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.

The harmful effects were as swift as they were severe. Within days, residents complained of foul smelling and tasting water. Within weeks, some residents’ hair began to fall out and their skin developed rashes. And within a year, there were positive tests for E. coli, a spike in deaths from Legionnaires’ disease, and reports of dangerously high blood-lead levels in Flint children. All of this resulted because the river water was 19 times more corrosive than the water pumped from Lake Huron by the DWSD, and because, without corrosion-control treatment, lead leached out of the lead-based service lines at alarming rates and found its way to the homes of Flint’s residents. The crisis was predictable, and preventable. See generally Mason v. Lockwood, Andrews & Newnam, P.C., 842 F.3d 383, 387 (6th Cir. 2016).” [MORE]