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Taking affirmative steps to systematically contaminate a community through its public water supply with deliberate indifference is a government invasion of the highest magnitude. Any reasonable official should have known that doing so constitutes conscience-shocking conduct prohibited by the substantive due process clause. These actions violate the heartland of the constitutional guarantee to the right of bodily integrity, and in such a situation, the obvious cruelty inherent in defendants' conduct should have been enough to forewarn defendants.
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municipal water supply from the Detroit Water and Sewerage Department (DWSD) to the Flint River to be processed by an outdated and previously mothballed water treatment plant.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. Without corrosion-control treatment, lead leached out of the lead-based service lines at alarming rates, resulting in several harmful effects to the Flint residents. Plaintiffs Shari Guertin, her minor child E.B., and Diogenes Muse-Cleveland claimed personal injuries and damages from drinking and bathing in the lead-contaminated water. Plaintiffs filed a complaint against the state, the city, and specified individuals (collectively, “defendants”), alleging that the defendants violated their right to bodily integrity as guaranteed by the Substantive Due Process Clause of the Fourteenth Amendment. The defendants filed a motion to dismiss, contending that they were entitled to qualified immunity because the plaintiffs did not plead a plausible Fourteenth Amendment Due Process violation of their right to bodily integrity. Moreover, the defendants alleged the City of Flint was entitled to Eleventh Amendment immunity from plaintiffs' suit because the takeover by the State of Michigan of the City of Flint pursuant to Michigan's "Emergency Manager" law transformed the City into an arm of the state.
In the plaintiffs’ action against the state, the city, and specified individuals for injuries caused by government-created lead-contaminated water, the Court held that the district court properly denied defendants' motion to dismiss the 42 U.S.C.S. § 1983 due process claims based on qualified immunity because plaintiffs pleaded a plausible Fourteenth Amendment violation of their right to bodily integrity where the city's knowing decision to use outdated equipment and mislead the public about the safety of the water shocked the conscience. The Court further held that the city was not entitled to Eleventh Amendment immunity because it did not show that when under emergency management, it was an "arm of the state" where the foremost consideration— the state's potential liability for judgment—counseled against a finding of Eleventh Amendment immunity, and the remaining factors did not "far outweigh" this factor.