Water
JACKSON, Miss. - Residents of Jackson, Miss., who drank lead-contaminated water can proceed with a class action claiming their constitutional right to bodily integrity was violated, a three-judge panel of the Fifth Circuit Court of Appeals ruled, although city officials are protected by the doctrine of qualified immunity.
Citing a long line of U.S. Supreme Court decisions applying the Due Process Clause to cases where plaintiffs were subjected to forced medical treatment or corporal punishment, Judge Catharina Haynes said the City of Jackson should be held accountable for allowing its municipal water system to degrade, releasing toxic lead at more than double federal safety levels.
“The right to bodily integrity arguably carries greater weight here than in the cases that have reached the Supreme Court,” wrote the judge, a George W. Bush-appointee, in a Nov. 17 decision. “The state is alleged to have knowingly introduced a toxin to residents’ bodies, without any intended therapeutic benefit, and then told people that it was safe.”
Judge Kurt Englehardt, also a Bush nominee, dissented, saying the majority ignored repeated warnings from the Supreme Court against using substantive due process to “smuggle” in “new rights” and “self-perceived righteous outcomes.” In this case, he said, the majority conjured up “a right to the competent provision of municipal water services.”
“This breathtaking expansion of substantive due process aims to convert the comforts and conveniences of modern life into constitutional rights,” he wrote. Judge Englehardt also criticized the majority for giving qualified immunity to city officials under the theory they couldn’t have known residents have a constitutional right to lead-free water, while simultaneously ruling such a right exists.
In 2011, the Mississippi State Department of Health warned Jackson was at “high-risk for lead poisoning” and testing showed that lead concentration rose from 8.8 parts per billion in 2009 to more than 33 ppb in 2013. The federal government sets an “action level” of 15 ppb.
The interim director of public works warned in 2013 a lime-injection system to reduce acidity wasn’t working because the city used powdered lime instead of liquid, gumming up the pipes. He proposed $400,000 in improvements, but incoming Mayor Tony Yarber scrapped the plan and replaced the director. The city also switched from well to surface water with higher acidity, aggravating the problem.
By 2015, testing showed drinking water exceeded 15 ppb in 22% of homes, more than the 17% in Flint, Mich., in an earlier lead crisis. The city didn’t release test results until 2016, when Mayor Yarber said “We’re not Flint.” Another city official who warned about the lead was fired for “possibly creating unwarranted public fear.”
In March 2020, the Environmental Protection Agency issued an emergency order citing safety violations but the city didn’t acknowledge it for a year, the majority said.
Plaintiffs filed a class action making substantive due process claims their bodily integrity was violated by a state-created danger as well as state-law claims. A federal court dismissed the constitutional claims and ruled city officials were entitled to qualified immunity. The court declined to address the state law claims.
Articles included in the court record show Jackson officials warned pregnant women and young children against drinking tap water in 2016 and urged all children to be tested for lead. The letter included detailed instructions for avoiding lead exposure from tap water. The majority of homes never had a lead problem, Judge Englehardt wrote.
The majority agreed city officials were entitled to qualified immunity because they couldn’t have understood their actions to be unconstitutional. While the Sixth Circuit Court of Appeals used similar reasoning in a case over the Flint lead crisis, the majority said that was too recent.
Judge Englehardt criticized their reasoning, questioning how the city’s actions could be egregious enough to violate the Constitution, yet not egregious enough to overcome qualified immunity.
“The majority’s inconsistencies on qualified immunity are a tell that its substantive due process analysis has gone awry,” he wrote. “It is precisely because the majority breaks new ground” that they can protect the officials with qualified immunity, he said.
“Today’s opinion opens Pandora’s box of substantive due process claims and transforms this court—instead of the electorate—into the ultimate arbiters of good policy judgment,” Judge Englehardt wrote.
