Petition for Writ of Certiorari — Stephen Busch, et al., Petitioners v. Shari Guertin, et al.
Supreme Court briefSep 13, 2019
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NO. ___________
IN THE
Supreme Court of the United States
STEPHEN BUSCH, MICHAEL PRYSBY, LIANE SHEKTER
SMITH, AND BRADLEY WURFEL, Petitioners,
v.
SHARI GUERTIN, ET AL., Respondents.
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Sixth Circuit
PETITION FOR A WRIT OF CERTIORARI
CHARLES E. BARBIERI
ALLISON M. COLLINS
FOSTER, SWIFT, COLLINS
& SMITH, P.C.
313 S. Washington Square
Lansing, MI 48933
(517) 371-8155
CBarbieri@fosterswift.com
Counsel for Petitioner
Prysby
JOHN J. BURSCH
Counsel of Record
BURSCH LAW PLLC
9339 Cherry Valley
Avenue SE, #78
Caledonia, MI 49316
(616) 450-4235
jbursch@burschlaw.com
Counsel for Petitioners
(Additional counsel on inside cover)
MICHAEL JOHN PATTWELL
JAY M. BERGER
CHRISTOPHER B. CLARE
CLARK HILL PLC
500 Woodward Ave.
Suite 3500
Detroit, MI 48226
(517) 318-3043
mpattwell@clarkhill.com
Counsel for Petitioner
Wurfel
PHILIP A. GRASHOFF, JR.
SMITH HAUGHEY RICE &
ROEGGE
100 Monroe Center NW
Grand Rapids, MI 49503
(616) 458-3633
pgrashoff@shrr.com
Counsel for Petitioner
Busch
THADDEUS E. MORGAN
MICHAEL J. PERRY
FRASER TREBILCOCK
124 W. Allegan Street
Suite 1000
Lansing, MI 48933
(517) 377-0877
tmorgan@fraserlawfirm.com
Counsel for Petitioner
Shekter Smith
i
QUESTIONS PRESENTED
1. Whether the 14th Amendment’s constitutional
right to “bodily integrity” extends to encapsulate a
right to be protected by state regulators from a foreseeable risk of harm from exposure to contaminants
in public drinking water, or to be free from allegedly
false statements by an agency spokesperson.
2. If so, whether such a bodily-integrity right was
clearly established at the time the defendant officials
were fulfilling their official duties.
3. Whether mere alleged mistakes and regulatory
inaction by state regulators, or allegedly false statements by an agency spokesperson, are sufficiently
“conscience shocking” to strip a government official of
qualified immunity.
ii
PARTIES TO THE PROCEEDING
Petitioners are Stephen Busch, Michael Prysby,
Liane Shekter Smith, and Bradley Wurfel.
Respondents are Shari Guertin, individually and
as next friend of her child, E.B., a minor, and Diogenes
Muse-Cleveland.
Additional Defendants (but not Petitioners here)
are the City of Flint, Darnell Earley, Gerald Ambrose,
Howard Croft, Veolia North America, LLC, Lockwood
Andrews & Newnam, Inc., and the State of Michigan.
DIRECTLY RELATED CASES1
1. United States District Court for the Eastern
District of Michigan: Guertin, et al. v. State of
Michigan, et al., No. 16-cv-12421. Opinion and Order
entered June 5, 2017.
2. United States Court of Appeals for the Sixth
Circuit: (1) Guertin, et al. v. State of Michigan, et al.,
Nos. 17-1698, 17-1699, 17-1745, 17-1752, and 171769. Opinion entered January 4, 2019. (2) Guertin, et
al. v. State of Michigan, et al., Nos. 17-1699 and 171745. Order denying rehearing en banc entered May
16, 2019.
3. United States Supreme Court. (1) Busch, et al.
v. Guertin, et al., Application No. 19A111. (2) City of
Flint, et al. v. Guertin, et al., No. 19-205.
1
This case is one of 49 pending in the United States District
Court for the Eastern District of Michigan that have been
consolidated as In re Flint Water Litigation, No. 16-cv-10444.
Petitioners do not interpret this Court’s Rule 14.1(b)(i) as
including the other cases as “related” to the present case.
iii
TABLE OF CONTENTS
QUESTIONS PRESENTED ....................................... i
PARTIES TO THE PROCEEDING ........................... ii
DIRECTLY RELATED CASES ................................. ii
PETITION APPENDIX TABLE OF CONTENTS ..... v
TABLE OF AUTHORITIES.......................................vi
OPINIONS BELOW ....................................................1
JURISDICTION ..........................................................1
CONSTITUTIONAL PROVISION INVOLVED ........1
INTRODUCTION ........................................................2
STATEMENT ..............................................................6
A. Plaintiffs ....................................................6
B. Petitioners .................................................7
C. Specific allegations against the MDEQ
Petitioners .................................................7
D. District court proceedings ....................... 13
E. The Sixth Circuit’s split decision............ 13
F. The divided denial of rehearing en
banc.......................................................... 17
REASONS FOR GRANTING THE PETITION ....... 19
I. The Sixth Circuit’s decision transforms the
qualified-immunity defense. ......................... 20
A. Qualified
immunity
protects
government officials from being sued
for mistakes ............................................. 20
iv
TABLE OF CONTENTS—Continued
B. The Sixth Circuit changed what it
means for a constitutional right to be
“clearly established.” ............................... 21
C. The Sixth Circuit has changed the
meaning of “conscience-shocking”
behavior ................................................... 27
II. No previous court has recognized a
constitutional right to bodily integrity to
be protected by state regulators from
exposure to contaminants in drinking
water or from allegedly false statements
made by an agency spokesperson to the
media. ............................................................. 32
III.This case is an ideal vehicle to clear up the
substantial confusion caused by the Sixth
Circuit’s published decision. ......................... 35
CONCLUSION .......................................................... 37
v
PETITION APPENDIX TABLE OF CONTENTS
United States Court of Appeals for the Sixth
Circuit,
Opinion in 17-1698 /1699 /1745 /1752 /1769,
Issued January 4, 2019 ........................ 1a–105a
United States District Court for the Eastern
District of Michigan,
Opinion and Order Granting in Part and
Denying in Part Defendants’ Motions to
Dismiss in 16-cv-12412,
Issued June 5, 2017 .......................... 106a–183a
United States Court of Appeals for the Sixth
Circuit,
Order Denying Petitions for Rehearing En
Banc in 17-1699/1745,
Issued May 16, 2019 ......................... 184a–200a
vi
TABLE OF AUTHORITIES
Page(s)
Cases
Allen v. N.Y.C. Hous. Auth.,
2012 U.S. Dist. LEXIS 130307 (S.D.N.Y.
July 16, 2012) ....................................................... 24
Anderson v. Creighton,
483 U.S. 635 (1987) .............................................. 14
Ashcroft v. al-Kidd,
563 U.S. 731 (2011) ........................................ 20, 21
Barrett v. United States,
798 F.2d 565 (2d Cir. 1986) ........................... 14, 32
Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007) ................................................7
Benzman v. Whitman,
523 F.3d 119 (2d Cir. 2008) ......................... passim
Branch v. Christie,
2018 WL 337751 (D.N.J. Jan. 8, 2018) ......... 17, 22
Brown v. Detroit Pub. Sch. Cmty. Dist.,
763 Fed. App’x 497 (6th Cir. 2019) ...................... 30
Collins v. Harker Heights,
503 U.S. 115 (1992) .............................................. 27
Coshow v. City of Escondido,
132 Cal. App. 4th 687 (Cal. Ct. App. 2005) ... 17, 22
Cruzan v. Director, Missouri Dep’t of Health,
497 U.S. 261 (1990) .............................................. 14
Daniels v. Williams,
474 U.S. 327 (1986) .......................................... 6, 27
vii
TABLE OF AUTHORITIES—Continued
Page(s)
Davis v. New York City Hous. Auth.,
379 F. Supp. 3d 237 (S.D.N.Y. 2019) ................... 36
DeShaney v. Winnebago Cty. Dep’t of Soc. Servs.,
489 U.S. 189 (1989) ........................................ 27, 29
Etherton v. Rivard,
800 F.3d 737 (6th Cir. 2015) ................................ 19
Eves v. LePage,
927 F.3d 575 (1st Cir. 2019) ................................ 31
Foli v. Metro. Water Dist. of S. Cal.,
592 Fed. App’x 634 (9th Cir. 2015) ...................... 22
Greene v. Plano Indep. Sch. Dist.,
103 Fed. App’x 542 (5th Cir. 2004) ...................... 23
Guertin v. Michigan,
924 F.3d 309 (6th Cir. 2019) ..................................1
Guertin v. State of Michigan,
912 F.3d 907 (6th Cir. 2019) ..................................1
Guertin v. State of Michigan,
No. 16-cv-12412, 2017 WL 2418007 (E.D.
Mich. June 5, 2017) ................................................1
Hood v. Suffolk City Sch. Bd.,
469 Fed. App’x 154 (4th Cir. 2012) ................ 23, 25
Hootstein v. Amherst-Pelham Reg’l Sch. Comm.,
361 F. Supp. 3d 94 (D. Mass. 2019) ..................... 36
In re Camp Lejeune N. Carolina Water
Contamination Litig.,
263 F. Supp. 3d 1318 (N.D. Ga. 2016) ................. 24
In re Cincinnati Radiation Litig.,
874 F. Supp. 796 (S.D. Ohio 1995) ................ 14, 33
viii
TABLE OF AUTHORITIES—Continued
Page(s)
J.S. ex rel. Simpson v. Thorsen,
766 F. Supp. 2d 695 (E.D. Va. 2011) ................... 25
Kallstrom v. City of Columbus,
136 F.3d 1055 (6th Cir. 1998) .............................. 13
Kaucher v. County of Bucks,
455 F.3d 418 (3d Cir. 2006) ................................. 23
Lewellen v. Metropolitan Gov’t,
34 F.3d 345 (6th Cir. 1994) .................................. 29
Lojuk v. Quandt,
706 F.2d 1456 (7th Cir. 1983) ........................ 14, 33
Lombardi v. Whitman,
485 F.3d 73 (2d Cir. 2007) ................. 17, 23, 31, 34
Lopresti v. Norwalk Pub. Sch.,
2014 U.S. Dist. LEXIS 139361 (D. Conn.
Sept. 30, 2014) ...................................................... 25
Missouri v. McNeely,
569 U.S. 141 (2013) ........................................ 16, 32
Mullenix v. Luna,
136 S. Ct. 305 (2015) ............................................ 20
Naperville Smart Meter Awareness v. City of
Naperville,
69 F. Supp. 3d 830 (N.D. Ill. 2014) ...................... 25
Naumovski v. Norris,
934 F.3d 200 (2d Cir. 2019) ................................. 31
Paige v. N.Y.C. Hous. Auth.,
2018 U.S. Dist. LEXIS 137238 (S.D.N.Y.
Aug. 18, 2018) ...................................................... 24
ix
TABLE OF AUTHORITIES—Continued
Page(s)
Pearson v. Callahan,
555 U.S. 223 (2009) ........................................ 20, 30
Reichle v. Howards,
566 U.S. 658 (2012) .............................................. 20
Riggins v. Nevada,
504 U.S. 127 (1992) .................................. 14, 16, 32
Rochin v. California,
342 U.S. 165 (1952) .................................. 14, 16, 32
Rogers v. Okin,
634 F.2d 650 (1st Cir. 1980) .......................... 14, 33
Roudat v. Georgia Dep’t of Cmty. Affairs,
2017 U.S. Dist. LEXIS 25192 (N.D. Ga.
Feb. 23, 2017) ....................................................... 25
Saucier v. Katz,
533 U.S. 194 (2001) .............................................. 20
Schulkers v. Kammer,
367 F. Supp. 3d 626 (E.D. Ky. 2019) ................... 37
Singh v. Cordle,
__ F.3d __, 2019 WL 4050272 (10th Cir.
Aug. 28, 2019) ...................................................... 31
United States v. Brandon,
158 F.3d 947 (6th Cir. 1988) ................................ 14
Upsher v. Grosse Point Pub. Sch. Sys.,
285 F.3d 448 (6th Cir. 2002) ................................ 29
Walker v. City of East Chicago,
2017 WL 4340259 (N.D. Ind. Sept. 29,
2017) ..................................................................... 24
x
TABLE OF AUTHORITIES—Continued
Page(s)
Washington v. Harper,
494 U.S. 210 (1990) .................................. 14, 16, 32
White v. Pauly,
137 S. Ct. 548, 552 (2017) .......................... 5, 15, 21
Winston v. Lee,
470 U.S. 753 (1985) .................................. 14, 16, 32
Woods v. Etherton,
136 S. Ct. 1149 (2016) .......................................... 19
Statutes
28 U.S.C. 1254 .............................................................1
Rules
40 C.F.R. 141.80 ..........................................................2
40 C.F.R. 141.81 ..........................................................3
Sup. Ct. R. 14.1 ........................................................... ii
Other Authorities
U.S. Const. amend. XIV, § 1 .......................................1
1
OPINIONS BELOW
The District Court opinion granting in part and
denying in part Petitioners’ motions to dismiss is
reported at Guertin v. State of Michigan, No. 16-cv12412, 2017 WL 2418007 (E.D. Mich. June 5, 2017),
and is reprinted at App. 106a. The court of appeals
opinion affirming that ruling is reported at Guertin v.
State of Michigan, 912 F.3d 907 (6th Cir. 2019), and is
reprinted at App. 1a. The Sixth Circuit’s deeply
divided order denying Petitioners’ petition for rehearing en banc is reported at Guertin v. Michigan, 924
F.3d 309 (6th Cir. 2019), and is reprinted at 184a.
JURISDICTION
The judgment of the court of appeals was entered
on January 4, 2019. App. 1a. The court of appeals
denied Petitioners’ timely request for rehearing en
banc on May 16, 2019. App. 184a. Justice Sotomayor
extended the time to file a petition for a writ of
certiorari to September 13, 2019. This Court has
jurisdiction under 28 U.S.C. 1254(1).
CONSTITUTIONAL PROVISION INVOLVED
The Fourteenth Amendment to the United States
Constitution states, in relevant part:
[N]or shall any State deprive any person of
life, liberty, or property, without due process
of law . . . .
2
INTRODUCTION
The so-called “Flint Water Crisis” began in 2013,
when an emergency financial manager for the City of
Flint, Michigan, decided to switch Flint’s public drinking water source to the more affordable Karegnondi
Water Authority, and the City of Detroit then unilaterally terminated its longstanding contract for providing drinking water to Flint. Because the Authority
was not yet operational, the emergency manager
chose an interim measure: to use water from the Flint
River, treated at the City’s water treatment plant
until the Authority could deliver water. That changeover was supervised by a subsequent emergency
manager and an outside engineering consultant. This
case arises from the alleged improper treatment of
Flint River water, which purportedly caused contaminants and lead to leach into the drinking water from
the City’s water distribution pipes and homeowner
service lines.
Petitioners are four current or former employees
of the Michigan Department of Environmental
Quality, or MDEQ,1 the state agency responsible for
oversight of compliance with state and federal safe
drinking-water laws by public water systems, like the
City of Flint’s. The MDEQ’s task included ensuring
that Flint complied with the federal Lead and Copper
Rule (“LCR”), which generally requires public water
systems to monitor lead and copper levels in drinking
water and implement corrosion control treatments, as
necessary. 40 C.F.R. 141.80 et seq.
1
This Department is now known as the Department of Environment, Great Lakes, and Energy.
3
Flint did not previously treat the water it received
from Detroit with corrosion-control chemicals, and
there was therefore no corrosion control to be
“maintained” when the water source was changed, as
the LCR contemplates. 40 C.F.R. 141.81. MDEQ has
historically interpreted the LCR as requiring a public
water system to conduct two rounds of lead and copper
monitoring to determine what, if any, corrosioncontrol treatment may be needed for a particular
water source before implementation of corrosion
controls. This interpretation was applied to Flint’s
water source switch, and Flint began using the Flint
River without first implementing corrosion-control
treatment chemicals. It is this plausible but allegedly
mistaken interpretation of the federal LCR that gives
rise to the constitutional claims against Petitioners.
As concerns of lead in Flint’s drinking water
emerged, the City hired another engineering firm that
completed a 160-hour assessment and concluded that
Flint’s water was in compliance with federal and state
water quality regulations and remained safe to drink.
Despite increasing complaints, MDEQ continued to
believe that Flint’s drinking water was safe based on
Flint’s submitted sampling data, and MDEQ’s
Communications Director, Petitioner Wurfel, made
several public statements to that effect.
By October 2015, Flint’s two rounds of lead and
copper testing submitted to MDEQ demonstrated a
need to implement some form of corrosion control, and
Flint was notified that such treatment would be
required. As a result of numerous meetings between
MDEQ, the EPA, and Flint, Flint reconnected its
water supply system to Detroit on October 16, 2015.
4
The EPA subsequently issued a legal opinion in
November 2015 concluding that the LCR was
ambiguous when applied to Flint’s water source
switch, and that MDEQ applied a plausible interpretation of the LCR. The EPA stated that the situation
confronted in Flint: “rarely arises and the language of
the LCR does not specifically discuss such
circumstances. . . . [I]t appears that there are differing possible interpretations of the LCR with respect to
how the rule’s optimal corrosion-control treatment
procedures apply to this situation, which may have led
to some uncertainty with respect to the Flint water
system.”2
Plaintiffs filed this lawsuit claiming that Petitioners failed to protect them from a foreseeable risk
of harm from contaminants, including lead, following
Flint’s water-source switch. Their only remaining
claim is for violation of their substantive-due-process
right to bodily integrity, a right they say protects them
from foreseeable harm tangentially arising from
decisions made by regulators and agency spokesperson statements to media members. The Sixth
Circuit, in a 2-1 decision, allowed that claim to go
forward, causing the dissent, penned by Judge
McKeague, to observe: “the majority extends the
protection 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.” App. 61a.
2
https://bit.ly/2ktoaaE
5
What’s more, commented Judge McKeague, “the
majority unfairly denies defendants protection from
suit under the doctrine of qualified immunity,”
because “the conduct actually alleged in the complaint
does not appear to be conscience-shocking and
because the Due Process Clause has never before been
recognized as protecting against government conduct
that in some way results in others being exposed to
contaminated water.” Ibid. “The mere fact that no
court of controlling authority has ever recognized the
type of due process right that plaintiffs allege in this
case is all we need to conclude the right is not clearly
established,” meaning qualified immunity applies.
App. 62a.
The panel majority’s decision, Judge McKeague
declared, was problematic for two reasons. First, the
decision created a deep, jurisprudential conflict: “[I]n
case after case around the country, courts have
consistently rejected substantive-due-process claims
based on the type of conduct alleged here.” App. 96a–
101a (discussing cases). Second, the opinion “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.” App. 105a (quoting
White v. Pauly, 137 S. Ct. 548, 552 (2017)).
The Sixth Circuit denied rehearing en banc in a
deeply fractured ruling. App. 184a. A five-judge dissent authored by Judge Kethledge concluded that “the
majority’s decision on the issue of qualified immunity
is barely colorable.” App. 197a. Substantive due process is “the vaguest of constitutional doctrines,” and
its “easy malleability makes it a notably poor instrument for prying away an officer’s qualified immunity.”
6
Ibid. The decision turns substantive due process into
“a font of tort law” by “expanding substantive due
process to reach claims based on negligence rather
than intent.” App. 200a (quoting Daniels v. Williams,
474 U.S. 327, 332 (1986)).
“No official,” said the dissenters, “can be expected
to recognize in advance that a court will recast a legal
rule so that it applies to conduct to which it has never
applied before.” App. 200a. That is why this Court
requires that a right be “clearly established” before a
plaintiff can overcome qualified immunity. Ibid. In
stretching substantive due process to cover an entirely
new claim against government regulators and an
agency spokesperson, then denying qualified immunity, the Sixth Circuit has done “exactly what the
Supreme Court has repeatedly told us not to do.” Ibid.
(citations omitted).
Certiorari is warranted.
STATEMENT
A. Plaintiffs
Plaintiffs are Flint residents that for decades
received water treated by Detroit’s Water and
Sewerage Department. ¶¶ 15–16, 19. In 2013, the
City’s emergency financial manager decided to temporarily switch the City’s water source to the Flint River
after Detroit terminated its water supply contract
with Flint while the Karegnondi Water Authority
water pipeline was still being built from Lake Huron
to Flint and other communities. Id. ¶¶ 20, 28, 93–94.
Plaintiffs allege they were harmed when they consumed Flint water after the switch and were exposed
to lead. Id. ¶ 13.
7
B. Petitioners
Petitioner Stephen Busch was the District Supervisor assigned to MDEQ’s Lansing District Office.
Compl. ¶ 33. Petitioner Michael Prysby was an engineer assigned to MDEQ’s District 11 (Genesee
County). Id. ¶ 35. Petitioner Liane Shekter Smith was
the Chief of MDEQ’s Office of Drinking Water and
Municipal Assistance. Id. ¶ 31. And Petitioner
Bradley Wurfel was MDEQ’s Communications
Director. Id. ¶ 32.
C. Specific allegations
MDEQ Petitioners
against
the
When assessing qualified immunity, there is a
world of difference between regulators and spokespersons who purportedly made mistakes and officials
who intentionally and forcefully beat, inject, or otherwise infringe on someone’s bodily integrity. Yet the
panel majority here wrongly analogized the MDEQ
Petitioners’ conduct to cases involving intentional,
forceful conduct while at the same time conceding that
“[t]here is no allegation defendants intended to harm
Flint residents.”3 App. 27a. The alleged conduct of
Petitioners is as follows, with the focus on alleged
facts, not alleged conclusions. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
Stephen Busch. Busch was an MDEQ district
supervisor. Plaintiffs claimed generically that Busch
“participated in MDEQ’s repeated violations of federal
water quality laws, the failure to properly study and
treat Flint River water, and the MDEQ’s program of
3
See also Drs. Gómez and Dietrich, The Children of Flint Were
Not ‘Poisoned,’ The New York Times (July 22, 2018), available at
https://nyti/ms/2mBqNEs.
8
systemic denial, lies and attempts to discredit honest
outsiders.” Compl. ¶ 33.
More specifically, Plaintiffs claimed that Busch
“falsely reported to the EPA that Flint had enacted an
optimized corrosion control plan, providing assurances to Plaintiffs that the water was safe when he
knew or should have known that these assurances
were false or were no more likely to be true than
false.” Compl. ¶ 33. The record shows that on March
26, 2014, Busch’s internal email to Shekter Smith
sought a consensus as to what Flint would be required
to do to begin using its own water supply on a fulltime basis. Id. ¶ 98. On April 17, 2014, Busch received
an email from Flint’s water treatment plant operator
who opined that the plant’s staff were not ready to
distribute water in the short term. Id. ¶ 96. On April
23, 2014, Busch told Wurfel that a “talking point” for
a forthcoming meeting was that the MDEQ is satisfied
with Flint’s ability to treat Flint River water and that
the Department looked forward to the City’s longterm continued operation of its treatment plant using
water from the Karegnondi Water Authority, a more
consistent water source. Id. ¶ 101.
Plaintiffs claim that on February 27, 2015, 10
months after Flint switched its water source, Busch
told the EPA that the Flint plant had an optimized
corrosion-control program even though it did not.
Compl. ¶¶ 33, 152. But “Flint did have a corrosioncontrol ‘program’ in place,” one that MDEQ opined
complied with the EPA’s Lead and Copper Rule. App.
81a–82a. And as Judge McKeague noted, “[e]ven [if]
the MDEQ was wrong, that error does not support the
allegation that Busch lied.” App. 82a.
9
“In sum,” Judge McKeague recognized, “neither
that statement nor the various other internal emails
in which Busch expressed support for the MDEQ’s
interpretation of the Lead and Copper Rule or his
belief that the water treatment plant was capable of
treating Flint River water plausibly demonstrate that
Busch created the Flint Water Crisis and then
attempted to deceive the public.” App. 82a.
Michael Prysby. Prysby was an MDEQ engineer
assigned to the district that included Flint. Plaintiffs
generally claim that Prysby “. . . participated in,
approved, and/or assented to the decision to switch
the water source, failed to properly monitor and/or
test the Flint River water, and provided assurances to
Plaintiffs that the Flint River water was safe when he
knew or should have known those statements to be
untrue or no more likely to be true than false.” Compl.
¶ 35. Plaintiffs did not provide any allegations
specifying the false assurances Prysby made to them.
The key document used to implicate Prysby is an
internal, October 2014 email Prysby wrote after
General Motors stopped using the Flint River water
at its engine plant because of fears that it would cause
corrosion due to high levels of chloride. Prysby’s email
said that despite the elevated chloride levels and the
fact that the water was “not optimal,” it was “satisfactory.” Prysby also stressed to his colleagues the
importance of not labeling Flint’s water as corrosive
merely because it failed to meet a manufacturing
facility’s criteria. Compl. ¶ 142.
As Judge McKeague observed, “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
10
him.” App. 81a. “Plaintiffs thus do not plausibly allege
that Prysby created the Flint Water Crisis and then
deceived the public about it.” Ibid.
Liane Shekter Smith. Plaintiffs claimed
generally that Petitioner Shekter Smith, MDEQ’s
Chief of the Office of Drinking Water and Municipal
Assistance, “knowingly participated in, approved of,
and caused the decision to transition Flint’s water
source to a highly corrosive, inadequately studied and
treated alternative,” and that Shekter Smith
“disseminated false statements to the public that led
to the continued consumption of dangerous water
despite knowing or having reason to know that the
water was dangerous.” Compl. ¶ 31. But Plaintiffs’
Complaint did not allege that Shekter Smith made or
disseminated any specific false statements to the
public.
The panel majority focused on two of her emails.
In the first, Shekter Smith asked that an EPA official
confirm “that the city [was] in compliance with the
Lead and Copper Rule,” to help the MDEQ
“distinguish between [its] goals to address important
public health issues separately from the compliance
requirements of the actual rule.” Compl. ¶ 207. As
Judge McKeague said, “all that her email exhibits is
an attempt to address” technical compliance and
public health separately. App. 82a–83a.
The second email was Shekter Smith’s response to
a query asking why MDEQ would allow anything less
than 100% of Michigan drinking water to meet all
health standards. Compl. ¶¶ 199–200. Her honest
answer was that such a goal is “impossible,” and that
the MDEQ did not “‘allow’ a Flint to occur; circumstances happen.” Ibid. She wanted goals that could be
achieved. “This second email,” said Judge McKeague,
11
“shows nothing more than Shekter-Smith’s concern
with meeting agency goals.” App. 83a. “These two
emails, in short, do not demonstrate that ShekterSmith created the Flint Water Crisis and subsequently attempted to deceive the public.” App. 84a.
Bradley
Wurfel.
Wurfel
was
MDEQ’s
Communications Director and the only Petitioner
plausibly implicated by Plaintiffs’ deceived-the-public
theory. Compl. ¶¶ 36–37. Wurfel played no role in
regulating Flint’s water supply and had no authority
to change the source of Flint’s water or treatment
requirements. Plaintiffs do not allege that they ever
directly spoke with Wurfel. The allegations against
him concern out-of-context statements made to media
members and other government officials.
In mid-July, 2015, Wurfel told a journalist: “let me
start here–anyone who was concerned about lead in
the drinking water in Flint can relax.” Compl. ¶ 204.
A few days later, Wurfel emailed his colleagues
requesting an update on the January/June testing
results, a recap of the December testing numbers, and
any additional information they could offer in light of
representations of high lead levels in 80 water tests in
Flint. Id. ¶ 212. The same day, Wurfel emailed a
member of the Governor’s staff and the former MDEQ
Director, stating that Flint had complied with the
Lead and Copper Rule but had not yet optimized its
water treatment, that Flint’s residents should not
worry about lead in their water supply, and that the
MDEQ’s recent sampling information submitted by
Flint did not indicate an imminent health threat from
lead or copper. Id. ¶ 217.
12
In August 2015, Wurfel responded to an inquiry
from the Governor’s office regarding reports of high
lead levels by researchers and the discrepancy
between those figures and the test results submitted
to MDEQ by opining that the source of the lead and
copper detected in the drinking water was not the
Flint River water or the City’s transmission lines but
was instead the plumbing in residents’ homes. Compl.
¶ 221. The email also included statements concerning
an “unvetted draft” of the EPA’s report to a Flint
resident, which “hopped-up and misinformed the
residents.” Id. ¶ 223.
Plaintiffs also claimed that in early September
2015, Wurfel issued statements to reporters discrediting the work of Virginia Tech Professor Marc Edwards
and stating that Edwards’ results were not supported
by lead sampling conducted by the city or blood-leadlevel testing the State conducted. Id. ¶¶ 225–27, 234.
Plaintiffs further claimed that Wurfel discredited persons working to protect the public and provided false
assurances to Flint’s residents about the water’s
safety. Id. 237. Plaintiffs’ allegations conclude with
the contention that, on September 28, 2015, Wurfel
released a public statement describing a Flint
physician’s statements about lead in the City of Flint’s
water as “unfortunate,” and stated that Flint’s water
was safe. Id. ¶ 287.
Judge McKeague explained that though Plaintiffs
say Wurfel’s statements were “knowing lies,” their
“allegations do not support that conclusion.” App. 85a.
“As plaintiffs’ complaint alleges, Wurfel made his
public statements after other MDEQ employees represented both that Flint’s water treatment plant was
prepared to treat Flint River water and that Flint’s
water testing results showed Flint was in compliance
13
with the requirements of the Lead and Copper Rule.”
Ibid. Plaintiffs do not allege Wurfel had any contrary
information. Ibid. “Wurfel’s handful of statements in
July and September do not evince a knowing and
intentional attempt to deceive the public about known
deficiencies in Flint’s water treatment procedures or
any conduct designed to intentionally contaminate the
public.” Ibid.
D. District court proceedings
The district court granted and denied Petitioners’
motions to dismiss in part, preserving Plaintiffs’
§ 1983 claim based on an alleged violation of their
substantive-due-process right to bodily integrity.
Based on the allegations summarized above, the
district court held that Plaintiffs “have a fundamental
interest in bodily integrity under the Constitution,
and, as set forth below, defendants violated plaintiffs’
fundamental interest by taking conscience-shocking,
arbitrary executive action, without plaintiffs’ consent,
that directly interfered with their fundamental right
to bodily integrity.” App. 156a. As to Petitioners’
qualified-immunity claim, the district court said that
“a series of Supreme Court cases over the last seventyfive years makes clear that defendants violated
plaintiffs’ clearly established rights.” Ibid.
E. The Sixth Circuit’s split decision
The Sixth Circuit panel majority affirmed. To
establish the contours of the constitutional right to
bodily integrity, the majority began by explaining that
bodily-integrity cases “‘usually arise in the context of
government-imposed
punishment
or
physical
restraint.’” App. 12a (quoting Kallstrom v. City of
Columbus, 136 F.3d 1055, 1062 (6th Cir. 1998)). The
majority then cited a series of cases involving direct,
14
forcible, physical invasion of nonconsenting individuals: Washington v. Harper, 494 U.S. 210, 213–17
(1990) (involuntary administration of antipsychotic
medication to an inmate); Riggins v. Nevada, 504 U.S.
127, 135–38 (1992) (forced administration of drugs);
Cruzan v. Director, Missouri Dep’t of Health, 497 U.S.
261, 265–69 (forced hydration and nutrition); Winston
v. Lee, 470 U.S. 753, 759 (1985) (non-consensual
surgical intrusion); United States v. Brandon, 158
F.3d 947, 953 (6th Cir. 1988) (forced medication);
Barrett v. United States, 798 F.2d 565 (2d Cir. 1986)
(government experiment on unknowing and unwilling
patients); Lojuk v. Quandt, 706 F.2d 1456 (7th Cir.
1983) (same); Rogers v. Okin, 634 F.2d 650 (1st Cir.
1980) (same); In re Cincinnati Radiation Litig., 874 F.
Supp. 796 (S.D. Ohio 1995) (same). App. 12a–17a.
Next, the majority recognized that to be actionable, government conduct must “shock the conscience.”
App. 19a–20a (citing Rochin v. California, 342 U.S.
165, 169, 172–74 (1952)). The majority was forced to
concede that there “is no allegation defendants
intended to harm Flint residents.” App. 27a.
Nonetheless, based on the bare-bones factual allegations noted above, the majority accused Petitioners of
“creat[ing] the Flint Water environmental disaster
and then intentionally attempt[ing] to cover-up their
grievous decision. Their actions shock our conscience.”
App. 32a.
Turning to Petitioners’ qualified-immunity
defense, the panel majority started with the premise
that the plaintiffs had to show a “clearly established”
right. App. 40a (quoting Anderson v. Creighton, 483
U.S. 635, 640 (1987)). That is, “Plaintiffs must
generally identify a case with a fact pattern similar
enough to have given ‘fair and clear warning to
15
officers’ about what the law requires.” App. 41a
(quoting White v. Pauly, 137 S. Ct. 548, 552 (2017) (per
curiam)). But, finding no case with an analogous fact
pattern, the majority dispensed with that requirement, holding that 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.” App. 42a. “To be sure,” said the
majority, “sweeping statements about constitutional
rights do not provide officials with the requisite
notice.” App. 45a. But the majority believed Petitioners’ conduct to be akin to “strip[ping] the very essence
of personhood” from Plaintiffs. App. 46a.
Judge McKeague dissented. “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.” App. 60a. The majority, he said, “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.” Ibid. And in so
doing, “the majority unfairly denies defendants protection from suit under the doctrine of qualified
immunity.” App. 61a.
Judge McKeague began by analyzing whether
Petitioners’ conduct was conscience shocking. App.
72a. He painstakingly walked through Plaintiffs’
allegations and concluded that they “do not plausibly
demonstrate a callous disregard for or intent to injure
plaintiffs, let alone any effort to ‘systematically
16
contaminate’ the Flint community.” App. 85a–86a.
“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.” App. 86a.
Next, Judge McKeague turned to whether Plaintiffs stated a claim based on a fundamental right to
bodily integrity. App. 88a–89a. He concluded that the
majority’s holding was at odds with decisions of this
Court and many others: “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.” App. 91a. All “analogous” cases relied on by
the majority, Judge McKeague observed, involved a
direct, physical intrusion. App. 91a–92a (analyzing
Rochin, 342 U.S. at 172–174 (forced vomiting);
Missouri v. McNeely, 569 U.S. 141, 148 (2013) (forced
blood sample), Winston v. Lee, 470 U.S. 753, 767
(1985) (anal probe); Washington v. Harper, 494 U.S.
210, 221, 223 (1990) (unwanted administration of
drugs); Riggins v. Nevada, 504 U.S. 127, 135 (1992)
(same)). “These [and other] 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 leadcontaminated water allegedly caused by policy or
regulatory decisions or statements.” App. 92a–93a.
17
Judge McKeague then shifted to the second prong
of the qualified-immunity analysis—whether Plaintiffs’ alleged constitutional right was “clearly
established”—and recognized that this “presents the
most fundamental problem for plaintiffs’ case.” App.
95a. In addition to the clear factual differences
between the cases on which the majority relied and
Plaintiffs’ allegations, “courts have consistently
rejected substantive-due-process claims based on the
type of conduct alleged here.” App. 96a–101a (citing
Branch v. Christie, 2018 WL 337751 (D.N.J. Jan. 8,
2018); Coshow v. City of Escondido, 132 Cal. App. 4th
687 (Cal. Ct. App. 2005); Benzman v. Whitman, 523
F.3d 119, 125, 127 (2d Cir. 2008); Lombardi v.
Whitman, 485 F.3d 73 (2d Cir. 2007)). “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,” said
Judge McKeague, but rather “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.” App. 101a–02a. “The number of cases rejecting similar environmentally based claims is significant.” App. 103a–04a & n.8 (discussing numerous
cases).
F. The divided denial of rehearing en
banc
The Sixth Circuit denied rehearing en banc. In
dissent, Judge Kethledge, joined by Judges Thapar,
Larsen, Nalbandian, and Murphy, opined that “the
majority’s decision on the issue of qualified immunity
is barely colorable.” App. 197a. The dissent began by
noting that “the putative constitutional violation
concerns the vaguest of constitutional doctrines,
18
namely substantive due process,” and that claim’s
“easy malleability makes it a notably poor instrument
for prying away an officer’s qualified immunity.” Ibid.
What’s more, “the bodily integrity caselaw fails to
provide the high degree of specificity necessary to
overcome qualified immunity, at least as to the claim
here.” App. 198a (cleaned up). “To cite the majority’s
own examples: the right protects against forcible
injection of antipsychotic medication; against forcible
stomach-pumping; and, in a district court case,
against conducting medical experiments upon cancer
patients without their consent.” App. 198a–99a
(cleaned up). “Nobody forcibly injects or stomachpumps or conducts medical experiments upon another
person by accident,” yet “even the majority concedes
that there is no allegation defendants intended to
harm Flint residents.” App. 199a (cleaned up). “Thus,
the only manner in which the majority’s ‘examples
illustrate the breadth’ of the right to bodily integrity,
is to show that the right is inapposite here.” Ibid.
(cleaned up).
The dissent recognized that what the majority did
in response to the adverse caselaw was to inappropriately describe the alleged right at a very general
level: “a constitutional right to be free of unwanted
substances.” App. 199a. (cleaned up). “That putative
right is violated every day, indeed every time that
virtually any of us takes a breath.” Ibid. And “the
majority’s formulation elides what the prior cases
requires—namely that the officer’s injection or
intrusion of the ‘foreign substance’ into the plaintiff’s
body be intentional. App. 199a–200a.
19
In sum, said the dissent, the majority’s opinion
“does exactly what the Supreme Court has repeatedly
told us not to do.” App. 200a (quoting Etherton v.
Rivard, 800 F.3d 737, 757 (6th Cir. 2015) (dissenting
opinion), rev’d sub nom. Woods v. Etherton, 136 S. Ct.
1149 (2016) (per curiam)).
REASONS FOR GRANTING THE PETITION
The Sixth Circuit’s opinion conflicts with numerous decisions of this and other courts by expanding the
Due Process Clause’s coverage into new territory and
altering the scope of qualified immunity for government officials. Absent this Court’s intervention,
nearly 50 similar cases in Michigan—and hundreds
more around the country—will be litigated based on a
suspect constitutional theory and in derogation of a
right to qualified immunity that courts have long
endorsed. Given the pervasive conflicts and the
tremendous waste of judicial and party resources, the
Court should grant the petition, reverse, and direct
that judgment be entered for Petitioners.
20
I.
The Sixth Circuit’s decision transforms the
qualified-immunity defense.
A. Qualified immunity protects government
officials from being sued for mistakes.
When resolving a governmental employee’s
assertion of qualified immunity, courts determine
(1) whether the facts the plaintiff has alleged
establish the violation of a constitutional right, and
(2) whether the right at issue was “clearly established” at the time of the incident. Pearson v.
Callahan, 555 U.S. 223, 232 (2009). Courts may
examine the two prongs in any order. Id. at 236.
An employee invoking qualified immunity does
not have to be infallible. It applies even when a government employee is mistaken about the law, facts, or
mixed questions of law and fact. Pearson, 555 U.S. at
231. “Qualified immunity gives government officials
breathing room to make reasonable but mistaken
judgments about open legal questions [and] protects
‘all but the plainly incompetent or those who
knowingly violate the law.’” Ashcroft v. al-Kidd, 563
U.S. 731, 743 (2011) (citations omitted).
To overcome a qualified-immunity defense, a
plaintiff must show that the constitutional right allegedly violated is clearly established in a particularized
sense so that a reasonable official in the defendant’s
position knows that his or her actions violate that
right. Saucier v. Katz, 533 U.S. 194, 202 (2001). 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)
(quoting Reichle v. Howards, 566 U.S. 658, 664
(2012)).
21
Because the “dispositive question is whether the
violative nature of particular conduct is clearly established,” courts look to how existing precedent applies
to each defendant’s actions in the ‘specific context of
the case” before it. Id. (cleaned up). A plaintiff must
be able to identify a case with a similar fact pattern,
one that would have given “fair and clear warning to
officers” about what the law requires. White v. Pauly,
137 S. Ct. 548, 552 (2017). Whether a law is clearly
established may not be defined at a high level of
generality. al-Kidd, 563 U.S. at 742.
B. The Sixth Circuit changed what it means
for a constitutional right to be “clearly
established.”
“As the majority acknowledge[d], plaintiffs point
to no factually similar controlling case in which a
court found that such conduct violated a right to
bodily integrity.” App. 96a (McKeague, J., dissenting).
“This alone should have been an important indication
to the majority that the defendants’ conduct did not
violate plaintiffs’ ‘clearly established rights.’” Ibid.
(quoting White, 137 S. Ct. at 552 (cleaned up)).
Indeed, “in case after case around the country,
courts have consistently rejected substantive-dueprocess claims based on the type of conduct alleged
here.” App. 96a (McKeague, J., dissenting). Courts
have refused to extend due-process protection to
include a right to a contaminant-free environment,
contaminant-free water, the right to receive clean
water, or the right to accurate information from a
government spokesperson about water. These cases
include but are not limited to:
22
•
Branch v. Christie, where the court rejected
claims against state officials who were alleged
to have “knowingly exposed [school] children
. . . to water that was contaminated with
unsafe levels of lead,” and “concoct[ing] a
scheme to cover up the health hazard.” 2018
WL 337751, at *1 (D.N.J. Jan. 8, 2018). While
the right to bodily integrity guarantees the
“right generally to resist enforced medication,” and to be “free from medical invasion,”
the right does not guarantee “a right to
minimum levels of safety” or protection from
contaminated water. Id. at *7.
•
Coshow v. City of Escondido, where the court
rejected the plaintiffs’ bodily-integrity claims
against city officials who knowingly added
fluoride to public drinking water even though
the fluoride might have contained “trace
levels of lead and arsenic.” 132 Cal. App. 4th
687, 700 (Cal. Ct. App. 2005). And unlike the
officials in Coshow, none of the MDEQ
Petitioners here “made a conscious decision to
introduce lead into Flint’s water.” App. 99a
(McKeague, J., dissenting).
•
Foli v. Metro. Water Dist. of S. Cal., where the
Ninth Circuit adopted the Coshow court’s
“well-reasoned conclusion” denying a bodilyintegrity claim based on additives in public
drinking water. It agreed that fluoridating
public drinking water “is not forced medication because the public is not forced to use the
water and fluoridation is not the type of invasive medical procedure that implicates” a constitutional bodily-integrity right. 592 Fed.
App’x 634, 635 (9th Cir. 2015).
23
•
Hood v. Suffolk City Sch. Bd., where the
Fourth Circuit rejected a plaintiff’s claim for
exposure to mold and contaminants as a
bodily-integrity violation because a liberty
interest in bodily integrity is only recognized
in very limited circumstances. There is no
right to be free from unreasonable risks of
bodily harm. 469 Fed. App’x 154, 159 (4th Cir.
2012)
•
Greene v. Plano Indep. Sch. Dist., where the
Fifth Circuit affirmed the grant of defendants’
motion to dismiss because the plaintiff’s
allegations that the school knew of dangerous
mold but failed to remedy or warn her of the
risk of harm did not rise to the level of a
substantive-due-process violation. 103 Fed.
App’x 542, 544–45 (5th Cir. 2004).
•
Benzman v. Whitman, which involved the
Second Circuit’s rejection of substantive-dueprocess claims against EPA officials for
making “false and misleading” statements
regarding air quality after the September 11
terrorist attacks. 523 F.3d 119, 123–27 (2d
Cir. 2008) (“no court has ever held a government official liable for denying substantive
due process by issuing press releases or making public statements”); Lombardi v. Whitman, 485 F.3d 73, 74 (2d Cir. 2007) (same).
•
Kaucher v. County of Bucks, where the Third
Circuit rejected a substantive-due-process
claim by corrections employees who became ill
due to a jail’s unsanitary conditions and officials’ false and misleading statements about
the scope of the problem. 455 F.3d 418, 420,
428–30 (3d Cir. 2006).
24
•
Walker v. City of East Chicago, where the
federal court rejected a claim based on officials allowing a housing authority to “build
and operate public housing in an area with
contaminated soil.” 2017 WL 4340259, at *6
(N.D. Ind. Sept. 29, 2017).
•
Allen v. N.Y.C. Hous. Auth., denying a
substantive-due-process claim based on the
housing authority knowing of mold in plaintiff’s apartment but failing to effectively
remediate the condition because a government actor’s failure to protect an individual
from a known danger to bodily harm did not
amount to a constitutional violation. 2012
U.S. Dist. LEXIS 130307, at *20–28 (S.D.N.Y.
July 16, 2012).
•
Paige v. N.Y.C. Hous. Auth., granting defendants’ motion to dismiss a substantive-dueprocess claim based on a failure to remove or
address lead paint in residences because allegations of failing to provide a safe environment are insufficient to state a substantivedue-process claim. 2018 U.S. Dist. LEXIS
137238, at *32–35 (S.D.N.Y. Aug. 14, 2018).
•
In re Camp Lejeune N. Carolina Water
Contamination Litigation, which rejected a
claim by service members who alleged that
officials failed to monitor water quality and
notify them of toxic substances. 263 F. Supp.
3d 1318, 1325, 1359 (N.D. Ga. 2016).
25
•
Naperville Smart Meter Awareness v. City of
Naperville, where a court rejected a claim that
radio waves from devices officials installed in
homes posed health risks. 69 F. Supp. 3d 830,
839 (N.D. Ill. 2014).
•
Lopresti v. Norwalk Pub. Sch., 2014 U.S. Dist.
LEXIS 139361 (D. Conn. 2014), rejecting a
claim that the defendant had “intentionally
and maliciously” exposed individuals to a
highly dangerous environment related to mold
and concealed it because failure to warn or
remedy dangerous environmental conditions
did not constitute a constitutional violation.
•
Roudat v. Georgia Dep’t of Cmty. Affairs, 2017
US Dist. LEXIS 25192 (N.D. Ga. 2017),
rejecting a due-process claim based on failing
to remedy or prevent exposure to mold and
contaminants.
•
And J.S. ex rel. Simpson v. Thorsen, which
rejected a claim by a student that school
officials knowingly concealed a mold problem
that affected the student’s health. 766 F.
Supp. 2d 695, 712 (E.D. Va. 2011). See also
Hood v. Suffolk City School Board, 469 Fed.
App’x 154 (4th Cir. 2012) (similar).
The majority ignored these and similar cases
because it believed that Petitioners’ conduct was
comparable to intentionally and systemically poisoning an entire community. But 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.” App. 101a–02a
(McKeague, J., dissenting). “It is about a series of
26
erroneous and unfortunate policy and regulatory decisions and statements that, taken together, allegedly
caused plaintiffs to be exposed to contaminated
water.” App. 102a. The “clearly established” law the
majority cited put the MDEQ Petitioners on notice of
completely different prohibited conduct: it is unlawful
for government officials to forcibly induce vomiting,
administer anti-psychotic drugs to pretrial detainees,
or to cut off life support in some circumstances.
The Sixth Circuit majority’s willingness to let
inapposite case law “clearly establish” Plaintiffs’
rights has mammoth repercussions. Without the
traditional limits on the malleable substantive-dueprocess guarantees of the Constitution, public officials
are exposed to unqualified liability based on allegations of abstract rights. Here, that allowed the
majority to deny qualified immunity to the MDEQ
Petitioners despite no court having ever recognized a
right to have government regulators act a certain way
if there is a possible water contamination problem or
a right to accurate press statements from agency
spokespersons. The opinion welcomes lawsuits
against food inspectors, regulators who approve
medicines and medical devices, FAA regulators who
oversee aircraft manufacturers, environmental
regulators issuing permits, and even agency
spokespersons who play no part in the regulatory
process, making it nearly impossible to find anyone
willing to accept these important government
positions.
27
C. The Sixth Circuit has changed the meaning of “conscience-shocking” behavior.
“[A] policymaker’s or regulator’s unwise decisions
and statements or failures to protect the public are
typically
not
considered
conscience-shocking
conduct.” App. 72a (McKeague, J., dissenting).
“[N]egligence—even gross negligence—does not
implicate the Due Process Clause’s protections.” Ibid.
(citing Daniels v. Williams, 474 U.S. 327, 331–33
(1986)). That is because the Due Process Clause is not
supposed to be a substitute for common-law tort
liability. Collins v. Harker Heights, 503 U.S. 115, 128
(1992). Instead, it limits government officials from
using their power as an “instrument of oppression.”
DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489
U.S. 189, 195 (1989).
Significantly, “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.” App. 79a
(McKeague, J., dissenting). Plaintiffs say the decision
was made by Flint’s Emergency Manager. App. 79a–
80a. And “plaintiffs fail to allege that any of these
MDEQ employees knew that the Flint water treatment plant was incapable of treating Flint River
water.” App. 80a. “Nor do the majority’s ‘poignant
examples’ of a handful of plaintiffs’ allegations show
an attempt by any MDEQ employee to knowingly
mislead the public about Flint’s alleged noncompliance with drinking water laws or to falsely assure
residents of the water’s safety.” Ibid. In sum,
Plaintiffs’ allegations “do not plausibly demonstrate a
callous disregard for or intent to injure plaintiffs, let
alone any effort to ‘systematically contaminate’ the
Flint community.” App. 85a–86a.
28
Regarding the claims against Prysby, Shekter
Smith, and Busch, “[e]ven if the MDEQ employees
made mistakes in interpreting the [Lead and Copper]
Rule, those mistakes are not conscience-shocking.”
App. 86a (McKeague, J., dissenting). The EPA has
said that the unique situation here “rarely arises and
the language of the [Lead and Copper Rule] does not
specifically discuss such circumstances. . . . [I]t
appears that there are differing possible interpretations of the LCR with respect to how the rule’s optimal
corrosion control treatment procedures apply to this
situation, which may have led to some uncertainty
with respect to the Flint water system.” 11/3/15 EPA
Memorandum, Mays v. City of Flint, E.D. Mich. No.
16-cv-11519 (RE 29-11, PgID 1135–37), Sixth Circuit
No. 16-2484. Given that MDEQ officials could be
confused by this uncertainty and apply a plausible
interpretation different from that which the EPA now,
in hindsight, has opined should be applied in these
unique circumstances, it is impossible to say that the
MDEQ Petitioners’ conduct rose to the level of
egregiousness required to strip them of qualified
immunity.
Similarly, regarding the claims against Wurfel,
even if his statements were erroneous, the factual
allegations against him do not support a conclusion
that these statements were intentional lies or that
they shock the conscience. Instead, as Judge
McKeague noted, “[a]t most, they show a mistake of
law or fact, made at least in partial reliance on the
representations of other State employees.” App. 85a
(McKeague, J., dissenting).
29
Again, the majority has rendered a significant rift
in qualified-immunity jurisprudence. To begin, in
opening the door to amorphous constitutional claims
based on alleged failures to act, the Sixth Circuit
allowed allegations to go forward that this Court has
said are not actionable. E.g., DeShaney, 489 U.S. at
195 (“It is not enough to allege that a government
actor failed to protect an individual from a known
danger of bodily harm or failed to warn the individual
of that danger.”).
The Sixth Circuit itself has previously declined to
recognize a substantive-due-process right to be protected from exposure to contaminants, even when the
government actors allegedly created the exposure,
because such conduct did not “shock the conscience.”
In Upsher v. Grosse Point Pub Sch. Sys., 285 F.3d 448,
450 (6th Cir. 2002), the court rejected Section 1983
substantive-due-process claims premised on the
defendant forcing plaintiffs to remove carpet knowing
that the process would expose them to asbestos. A
contractor had refused to perform the work due to
asbestos-exposure concerns, yet defendant required
plaintiffs to perform the work without appropriate
safety equipment. Id. The Sixth Circuit turned to how
the plaintiffs described the constitutional right in
their complaint, and found that plaintiffs’ claim that
defendants had willfully, maliciously, and recklessly
disregarded their health and safety was not substantiated because there was no evidence that the defendants either intentionally injured the plaintiffs or
engaged in arbitrary conduct “intentionally designed
to punish someone.” Id. at 452–53; accord Lewellen v.
Metropolitan Gov’t, 34 F.3d 345, 348 (6th Cir. 1994)
(denying substantive-due-process claim based on
government’s decision to build a school in the
immediate vicinity of a high-voltage conductor line in
30
violation of applicable safety codes and standards
because the defendants “obviously did not make a
deliberate decision to inflict pain and bodily injury.”).
Highlighting the inherent contradiction between
the majority’s opinion and existing, clearly established substantive-due-process case law of what
constitutes “conscience shocking behavior,” the Sixth
Circuit came to the opposite conclusion in a substantially similar bodily-integrity case just a few months
ago. The court recently affirmed dismissal of a bodilyintegrity claim premised on forced consumption of
lead-contaminated water because it was in a noncustodial setting and the plaintiff had not proven
either intentional injury or arbitrary conduct intentionally designed to punish the plaintiff that “shocks
the conscience.” Brown v. Detroit Pub. Sch. Cmty.
Dist., 763 Fed. App’x 497, 503–04 (6th Cir. 2019). The
allegations in Brown closely track those here. While
the plaintiff in Brown argued that defendants violated
her constitutional rights by forcing her to use toxic
water for weeks due to the school’s “shocking misrepresentations,” the Sixth Circuit upheld dismissal of
plaintiff’s bodily-integrity claim because allegations of
providing plaintiff with contaminated water and
causing her to consume the water, thereby exposing
her to a foreseeable risk of harm, “suggest negligence,
rather than a deliberate imposition of bodily harm.”
Id. at 503.
In addition, the Sixth Circuit’s new conscienceshocking standard conflicts with numerous decisions
holding that a mere mistake of law—like most of
Petitioners’ differing interpretation of the Lead and
Copper Rule—is insufficient to defeat a qualifiedimmunity defense. E.g., Pearson, 555 U.S. at 231
31
(“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.’”); Singh v. Cordle,
__ F.3d __, 2019 WL 4050272, at *5 (10th Cir. Aug. 28,
2019) (qualified immunity “applies regardless of
whether the government official’s error is a mistake of
law”); Naumovski v. Norris, 934 F.3d 200 (2d Cir.
2019) (“Government officials are thus shielded from
liability whenever their actions are based on reasonable mistakes of law”); Eves v. LePage, 927 F.3d
575, 588 (1st Cir. 2019) (“A reasonable mistake of law
does not defeat qualified immunity.”). The standard
also conflicts with the Second Circuit’s opinions in
Benzman and Lombardi, which rejected bodilyintegrity claims indistinguishable from the current
claim against Wurfel based on allegedly false statements to the press.
Petitioners’ alleged conduct here consists of
internal emails, intra-governmental communications,
communications with the EPA, and press statements
to media members in a quickly changing and difficult
regulatory situation. None of this conduct satisfies the
“shocks the conscience” standard, and the Sixth
Circuit’s contrary holding warrants this Court’s grant
of this petition.
32
II. No previous court has recognized a
constitutional right to bodily integrity to be
protected by state regulators from exposure
to contaminants in drinking water or from
allegedly false statements made by an
agency spokesperson to the media.
As Judge McKeague explained in his panel
dissent, this Court and other federal circuits have
consistently interpreted the bodily-integrity right as
one that prohibits “forcible physical intrusion of the
body by the government.” App. 91a–94a (citations
omitted). The Sixth Circuit’s contrary decision creates
a substantial rift in the law of substantive due
process, one that will expose government regulators to
constitutional liability in a broad variety of contexts.
The same cases that make it impossible for Plaintiffs to show that they have a “clearly established”
constitutional right to safe drinking water, see supra
§ I.B., make clear that Plaintiffs have no substantivedue-process claim at all. Plaintiffs’ cited cases, and
those on which the Sixth Circuit majority relied,
consistently involve a direct physical invasion. This
Court’s precedents are of the same ilk. E.g., Rochin,
342 U.S. at 172–74 (state secured evidence for a
criminal prosecution by using a vomit-inducing
solution to forcibly extract evidence from the suspect’s
stomach); McNeely, 569 U.S. at 148 (“compelled
physical intrusion beneath [a suspect’s] skin and into
[the] veins to obtain a” blood sample); Winston, 470
U.S. at 767 (nonconsensual surgery to retrieve a bullet
from a suspect’s chest); Harper, 494 U.S. at 223
(unwanted administration of antipsychotic drugs to
an inmate); Riggins, 540 U.S. at 135 (unwanted
administration of drugs for pretrial detainees). So are
decisions from other circuits. E.g., Barrett (state
33
psychiatric hospital administered injections of a
compound the United States furnished as part of a
program to test the suitability of the injected
substance as a warfare agent); Lojuk (administering
of electroconvulsive therapy without patient consent);
Rogers (state administration of antipsychotic drugs to
involuntary patients at state mental health facilities).
Contrast all these cases with the one that the
Sixth Circuit majority found “especially analogous,”
In re Cincinnati Radiation Litigation, 874 F. Supp.
796 (S.D. Ohio 1995), a nonbinding district-court case.
That litigation involved government officials who
subjected unwitting cancer patients to high levels of
radiation on the pretense of performing cancer
treatment. Government officials intentionally and
deliberately injected the patients with radiation. That
situation is a far cry from saying that substantive due
process “protects an indeterminate number of public
citizens from certain regulatory decisions or
statements that have some impact on the quality of
public drinking water or any other environmental
resource,” the claim that Plaintiffs allegedly
presented and the majority accepted. App. 93a–94a
n.4 (McKeague, J., dissenting).
Deliberately injecting specific citizens with
radiation is not comparable to what happened here.
The MDEQ Petitioners did not intentionally or purposefully inject Plaintiffs with lead or force them to
ingest anything. They were doing the best they could
in difficult circumstances with limited information
certified by Flint as accurate and in compliance with
Lead and Copper Rule mandates. What the cases cited
in section I.A. show are that substantive-due-process
claims are regularly dismissed even where governmental defendants exercise a much greater degree of
34
control over the complained of environment or
contaminant because there is no constitutional right
to be protected by public officials from exposure to
contaminants under the Fourteenth Amendment.
These cases also demonstrate that the provision of
public housing or public water is not akin to forcible
injections or intrusions.
These differing circumstances are why the majority conceded that Plaintiffs have not alleged that any
MDEQ Petitioners intentionally tried to harm anyone. Yet the majority’s substantial departure from the
Sixth Circuit’s precedents and those of other courts
blows wide open the doors to governmental liability in
a context where constitutional claims are easy to
assert and difficult to defend.
Regarding Wurfel’s alleged media statements, no
court anywhere has ever held that statements made
to media members were a violation of a right to bodily
integrity. Indeed, the Second Circuit recognized this
in dismissing analogous claims in Benzman and
Lombardi. The panel majority here suggested that
Benzman and Lombardi were distinguishable because
those cases “involved the balancing of competing
government interests . . . during a time-sensitive
environmental emergency.” App. 33a. But the
Benzman plaintiffs resided, attended school, or
worked in lower Manhattan or Brooklyn, and there
was no immediate emergency (as in Lombardi) that
would have required the EPA to make public
statements reassuring the public that they could
return to their homes, jobs, or schools. Benzman, 523
F.3d at 123. Though the Benzman plaintiffs emphasized this point, id. at 128, the court nonetheless
dismissed their claims.
35
Additionally, the “competing government interests” at issue in Benzman were the EPA Administrator’s choice between accepting guidance from the
White House Council on Environmental Quality
(“CEQ”) or disregarding the CEQ’s views when communicating with the public. Id. at 128. Here, Wurfel
faced similar competing government interests. Just as
the EPA Administrator faced a choice over whether to
accept guidance from the CEQ, Wurfel similarly faced
a choice between accepting guidance from the State’s
technical experts regulating Flint’s operation of its
water treatment plant or disregarding these views in
communicating with the press. The Sixth Circuit’s
reliance on the emergency-nature dichotomy was
misguided, and its holding a significant, unwarranted
expansion of substantive-due-process liability.
III. This case is an ideal vehicle to clear up the
substantial confusion caused by the Sixth
Circuit’s published decision.
The Sixth Circuit’s unprecedented holding
requires this Court’s immediate intervention, and this
case is an ideal vehicle for this Court to address the
important questions presented.
First, the legal questions presented are unencumbered by factual issues. For purposes of this proceeding, Petitioners accept the truth of all the allegations
pled in the Complaint. Notably, this Court regularly
reviews qualified-immunity issues.
Second, the issues are monumentally important.
Claims based on the constitutional right to bodily
integrity are a growing cottage industry for plaintiffs’
lawyers. And given the legacy of lead-pipe systems in
nearly all major American cities, such claims will only
continue to grow. Moreover, regulators and agency
36
spokespersons in innumerable other contexts may
face previously unimagined lawsuits in reliance on
the Sixth Circuit’s reasoning.
Third, the Sixth Circuit’s holding is undeniably
out of step with decisions of this Court and other
circuits, both in the context of bodily-integrity claims
and qualified immunity.
Fourth, this case is one of 49 similar cases
currently pending before the United States District
Court for the Eastern District of Michigan. Absent
this Court’s intervention, tremendous judicial and
party time and resources will be needlessly expended.
Fifth, lawsuits targeting alleged lead contamination of public drinking water are not limited to Flint.
Additional cases are pending across the nation,
including in Chicago, Fresno, and Newark, among
others. These cases, and the governmental regulators
in those states, will similarly be affected by the
decision here, absent this Court’s action. The
majority’s opinion is already being relied on outside
the context of “Flint Water Crisis” cases by numerous
courts to expand the substantive-due-process guarantees of bodily integrity and contract the protection of
qualified immunity. E.g., Davis v. New York City
Hous. Auth., 379 F. Supp. 3d 237, 255 (S.D.N.Y. 2019)
(relying on Guertin in denying qualified immunity to
government officials from tenant’s claim that her
right to bodily integrity was violated by exposure to
extreme cold in her public housing apartment that
lacked heat); Hootstein v. Amherst-Pelham Reg’l Sch.
Comm., 361 F. Supp. 3d 94, 112–13 (D. Mass. 2019)
(relying on Guertin to deny qualified immunity from a
bodily-integrity claim based on alleged exposure to
lead contaminated water provided to students and
parents despite school allegedly knowing of high lead
37
levels); and Schulkers v. Kammer, 367 F. Supp. 3d 626
(E.D. Ky. 2019) (“the Sixth Circuit has recently
emphasized that we ‘do not require a prior, precise
situation’ or ‘a finding that the very action in question
has previously been held unlawful’ to conclude that
officials had ‘fair warning’ that their conduct was
unconstitutional”).
And finally, there is no need for further percolation. The conflicts are clear and, having denied en
banc rehearing, the Sixth Circuit is unlikely to revisit
its unprecedented decision. This Court should not
delay but should instead grant the petition now.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
JOHN J. BURSCH
Counsel of Record
BURSCH LAW PLLC
9339 Cherry Valley
Avenue SE, #78
Caledonia, MI 49316
(616) 450-4235
jbursch@burschlaw.com
Counsel for Petitioners
CHARLES E. BARBIERI
ALLISON M. COLLINS
FOSTER, SWIFT, COLLINS
& SMITH, P.C.
313 S. Washington Square
Lansing, MI 48933
(517) 371-8155
CBarbieri@fosterswift.com
Counsel for Petitioner
Prysby
38
MICHAEL JOHN PATTWELL
JAY M. BERGER
CHRISTOPHER B. CLARE
CLARK HILL PLC
500 Woodward Ave.
Suite 3500
Detroit, MI 48226
(517) 318-3043
mpattwell@clarkhill.com
Counsel for Petitioner
Wurfel
THADDEUS E. MORGAN
MICHAEL H. PERRY
FRASER TREBILCOCK
124 W. Allegan Street
Suite 1000
Lansing, MI 48933
(517) 377-0877
tmorgan@fraserlawfirm.com
Counsel for Petitioner
Shekter Smith
PHILIP A. GRASHOFF, JR.
SMITH HAUGHEY RICE &
ROEGGE
100 Monroe Center NW
Grand Rapids, MI 49503
(616) 458-3633
pgrashoff@shrr.com
Counsel for Petitioner
Busch
SEPTEMBER 2019
ia
PETITION APPENDIX TABLE OF CONTENTS
United States Court of Appeals for the Sixth
Circuit,
Opinion in 17-1698 /1699 /1745 /1752 /1769,
Issued January 4, 2019 ................................... 1a–105a
United States District Court for the Eastern
District of Michigan,
Opinion and Order Granting in Part and
Denying in Part Defendants’ Motions to
Dismiss in 16-cv-12412,
Issued June 5, 2017 ..................................... 106a–183a
United States Court of Appeals for the Sixth
Circuit,
Order Denying Petitions for Rehearing En
Banc in 17-1699/1745,
Issued May 16, 2019 .................................... 184a–200a
1a
RECOMMENDED FOR FULL-TEXT
PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0003p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
SHARI GUERTIN, individually and as
next friend of her child, E.B., a
minor; DIOGENES MUSE-CLEVELAND,
Nos. 17-1698
/1699 /1745
/1752 /1769
Plaintiffs-Appellees,
v.
STATE OF MICHIGAN, et al.,
Defendants,
CITY OF FLINT, MICHIGAN, HOWARD
CROFT, DARNELL EARLEY, and
GERALD AMBROSE (17-1699); LIANE
SHEKTER-SMITH, DANIEL WYANT,
STEPHEN BUSCH, MICHAEL PRYSBY,
and BRADLEY WURFEL (17-1745);
NANCY PEELER (17-1752); ROBERT
SCOTT (17-1769); EDEN WELLS and
NICK LYON (17-1698),
Defendants-Appellees. [sic]
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
2a
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.
ON BRIEF: Zachary C. Larsen, Richard S. Kuhl,
Margaret A. Bettenhausen, Nathan A. Gambill,
OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellants in 17-1698.
Frederick A. Berg, Jr., Sheldon H. Klein, BUTZEL
LONG, P.C., Detroit, Michigan, Nikkiya T. Branch,
PERKINS LAW GROUP, Detroit, Michigan,
Alexander S. Rusek, WHITE LAW PLLC, Okemos,
Michigan, William Y. Kim, CITY OF FLINT, Flint,
Michigan, Barry A. Wolf, LAW OFFICE OF BARRY
A. WOLF PLLC, Flint, Michigan, for Appellants in
17-1699. John J. Bursch, BURSCH LAW PLLC,
Caledonia, Michigan, Philip A. Grashoff, Jr., KOTZ
SANGSTER WYSOCKI P.C., Bloomfield Hills,
Thaddeus E. Morgan, Michael H. Perry, FRASER
TREBILCOCK, Lansing, Michigan, Charles E.
Barbieri, Allison M. Collins, FOSTER, SWIFT,
COLLINS & SMITH, P.C., Lansing, Michigan, Jay
3a
M. Berger, Michael J. Pattwell, Jordan S. Bolton,
Christopher B. Clare, CLARK HILL PLC, Detroit,
Michigan, for Appellants in 17-1745. Michael S.
Cafferty, Detroit, Michigan, for Appellant in 17-1752.
Mary Chartier, CHARTIER & NYAMFUKUDZA,
P.L.C., East Lansing, Michigan, for Appellant in 171769. Paul T. Geske, MCGUIRE LAW, P.C., Chicago,
Illinois, Steven Hart, HART, MCLAUGHLIN &
ELDRIDGE, LLC, Chicago, Illinois, John Sawin,
SAWIN LAW FIRM, LTD., Chicago, Illinois, for
Appellees. Samuel R. Bagenstos, Ann Arbor,
Michigan, for Amicus Curiae. Richard S. Kuhl,
Margaret A. Bettenhausen, Nathan A. Gambill,
Zachary C. Larsen, OFFICE OF THE MICHIGAN
ATTORNEY GENERAL, Lansing, Michigan, for
Amicus Curiae in 17-1699.
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 governmentcreated 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
4a
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).
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
5a
remaining claim is that defendants violated their
right to bodily integrity as guaranteed by the
Substantive Due Process Clause of the Fourteenth
Amendment. They bring this claim pursuant to 42
U.S.C. § 1983, under which “an individual may bring
a private cause of action against anyone who, under
color of state law, deprives a person of rights,
privileges, or immunities secured by the Constitution
or conferred by federal statute.” Wurzelbacher v.
Jones-Kelley, 675 F.3d 580, 583 (6th Cir. 2012).
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 Fourteenth Amendment Due Process violation of
their right to bodily integrity and was such a
constitutional right clearly established when the
defendants acted? We join the United States District
Court for the Eastern District of Michigan, In re
Flint Water Cases, 329 F. Supp. 3d 369 (E.D. Mich.
2018), vacated on other grounds (Nov. 9, 2018), and
Guertin v. Michigan, 2017 WL 2418007 (E.D. Mich.
June 4, 2017), the Michigan Court of Appeals, Mays
v. Snyder, 916 N.W.2d 227 (Mich. Ct. App. 2018), and
the Michigan Court of Claims, Mays v. Snyder, No.
16-000017-MM (Mich. Ct. Cl. Oct. 26, 2016),1 in
holding that plaintiffs have pled a plausible Due
1 The Michigan Court of Appeals and Michigan Court of Claims
construed the Due Process Clause of the Michigan Constitution
and, following Michigan precedent, deemed it coextensive with
its federal counterpart. See, e.g., Mays, 916 N.W.2d at 261.
6a
Process violation of bodily integrity regarding some
of the defendants. For the reasons that follow, we
affirm the district court’s order denying the motions
to dismiss based upon qualified immunity regarding
defendants Howard Croft, Darnell Earley, Gerald
Ambrose, Liane Shekter-Smith,2 Stephen Busch,
Michael Prysby, and Bradley Wurfel. However, we
reverse the denial of the motions to dismiss
regarding defendants Daniel Wyant, Nick Lyon,
Eden Wells, Nancy Peeler, and Robert Scott because
plaintiffs’ complaint alleges mere negligence, and not
a constitutional violation against them.
The second issue is whether the City of Flint is
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. It is not, and we therefore affirm
the district court’s same holding.
III.
We possess jurisdiction under 28 U.S.C. § 1291
and the “collateral-order doctrine,” as defendants are
appealing the denial of qualified and Eleventh
Amendment immunity. Kaminski v. Coulter, 865
F.3d 339, 344 (6th Cir. 2017). The district court
granted in part and denied in part defendants’
motions to dismiss plaintiffs’ complaint under
Federal Rule of Civil Procedure 12(b)(6). Given this
procedural posture, we construe the complaint in the
light most favorable to plaintiffs, accept all wellpleaded factual allegations as true, and draw all
2 We have changed the docket to correct plaintiffs’ misspelling
of Shekter-Smith’s name.
7a
reasonable inferences in plaintiffs’ favor. Crosby v.
Univ. of Ky., 863 F.3d 545, 551–52 (6th Cir. 2017).
But if we are to affirm, the factual allegations in
plaintiffs’ complaint must plausibly allege a legally
recognized constitutional claim. See generally Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 556–58 (2007).
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
8a
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 12(b)(6) motion to dismiss on the basis of qualified
immunity. Although . . . entitlement to qualified
immunity is a threshold question to be resolved at
the earliest possible point, that point is usually
summary judgment and not dismissal under Rule
12.” Wesley v. Campbell, 779 F.3d 421, 433–34 (6th
Cir. 2015) (internal citations, quotation marks, and
brackets omitted). The reasoning for our general
preference is straightforward: “Absent any factual
development beyond the allegations in a complaint, a
court cannot fairly tell whether a case is ‘obvious’ or
‘squarely governed’ by precedent, which prevents us
from determining whether the facts of this case
parallel a prior decision or not” for purposes of determining whether a right is clearly established. EvansMarshall v. Bd. of Educ. of Tipp City Exempted Vill.
Sch. Dist., 428 F.3d 223, 235 (6th Cir. 2005) (Sutton,
J., concurring) (brackets omitted).
V.
The Fourteenth Amendment provides that “[n]o
State shall . . . deprive any person of life, liberty, or
property, without due process of law.” U.S. CONST.
amend. XIV, § 1. Flowing directly from the
protections enshrined in the Magna Carta, see, e.g.,
Lewellen v. Metro. Gov’t of Nashville & Davidson
Cty., 34 F.3d 345, 348 (6th Cir. 1994), the Due
9a
Process Clause significantly restricts government
action—its core is “prevent[ing] government from
abusing its power, or employing it as an instrument
of oppression.” Collins v. City of Harker Heights, 503
U.S. 115, 126 (1992) (internal quotation marks and
brackets omitted); see also Cty. of Sacramento v.
Lewis, 523 U.S. 833, 845–46 (1998) (“The touchstone
of due process is protection of the individual against
arbitrary action of government, [including] the exercise of power without any reasonable justification in
the service of a legitimate government objective.”
(internal quotation marks omitted)). Although the
Clause provides no guarantee “of certain minimal
levels of safety and security,” it expressly prohibits
deprivations by “the State itself.” DeShaney v.
Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189,
195 (1989). That is, “[i]ts purpose [is] to protect the
people from the State, not to ensure that the State
protect[] them from each other.” Id. at 196.
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 exist if they were sacrificed.” Washington v.
Glucksberg, 521 U.S. 702, 720–21 (1997) (internal
quotation marks and citations omitted). The liberty
interests secured by the Due Process Clause
“include[] the right ‘generally to enjoy those privileges long recognized at common law as essential to
10a
the orderly pursuit of happiness by free men.’”
Ingraham v. Wright, 430 U.S. 651, 673 (1977) (quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923)).
These common-law privileges, the Supreme Court
has held, specifically embrace the right to bodily
integrity, Glucksberg, 521 U.S. at 720, and the right
not to be subjected to arbitrary and capricious
government action that “shocks the conscience and
violates the decencies of civilized conduct.” Lewis,
523 U.S. at 846–47 (internal quotation marks
omitted).
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.
11a
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., 384 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–
12a
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., Cruzan v. Dir., Missouri
Dep’t of Health, 497 U.S. 261, 269–70 (1990). Thus,
to show that the government has violated one’s right
to bodily integrity, a plaintiff need not “establish any
constitutional significance to the means by which the
harm occurs[.]” Boler v. Earley, 865 F.3d 391, 408 n.4
(6th Cir. 2017). That is because “individuals possess
a constitutional right to be free from forcible
intrusions on their bodies against their will, absent a
compelling state interest.” Planned Parenthood Sw.
Ohio Region v. DeWine, 696 F.3d 490, 506 (6th Cir.
2012).
13a
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 Fourteenth Amendment.” Id. at 221–22. This
“interest in avoiding the unwarranted administration of antipsychotic drugs is not insubstantial. The
forcible injection of medication into a nonconsenting
person’s body represents a substantial interference
with that person’s liberty.” Id. at 229 (citing Winston
v. Lee, 470 U.S. 753 (1985), and Schmerber, 384 U.S.
757). And this is especially so when the foreign
substance “can have serious, even fatal, side effects”
despite some therapeutic benefits. Id. But the extent
of this interference, reasoned the Court, is circumscribed by the government’s interest (there, administering medication in the custodial setting). Id. at
222–27. Examining those interests, the Court
permitted the physical intrusion upon a showing of
certain circumstances—danger to self or others, and
in the inmate’s medical interest. Id. at 227; see also
Riggins v. Nevada, 504 U.S. 127, 135–38 (1992)
(applying Harper to the forced administration of
drugs in trial and pretrial settings and focusing upon
the state’s “overriding justification and a determination of medical appropriateness” to justify the
intrusion); Sell v. United States, 539 U.S. 166, 177–
86 (2003) (similar).
The Supreme Court’s seminal “right to die” case,
Cruzan v. Director, Missouri Department of Health,
provides further explication. At issue in Cruzan was
14a
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 consent, and the
right to bodily integrity: “This notion of bodily integrity has been embodied in the requirement that
informed consent is generally required for medical
treatment,” id. at 269, “generally encompass[es] the
right of a competent individual to refuse medical
treatment,” id. at 277, and is a right that “may be
inferred from [the Court’s] prior decisions.” Id. at
278–79 (citing Jacobson v. Massachusetts, 197 U.S.
11 (1905); Breithaupt v. Abram, 352 U.S. 432 (1957);
Harper, 494 U.S. 210; Vitek v. Jones, 445 U.S. 480
(1980); and Parham v. J.R., 442 U.S. 584 (1979)).
And, although the Court assumed as much, “the logic
of [these] cases . . . embrace[s] . . . a liberty interest”
in “artificially delivered food and water essential to
life.” Id. at 279. As with Harper, the Court’s main
inquiry was not whether the case dealt with the right
to bodily integrity, but rather how to balance this
right with a competing state interest (the protection
of life) in relation to the procedural protections
provided (the state’s requirement that an incompetent person’s wishes to withdraw treatment be
proven by clear and convincing evidence). Id. at 280–
87; cf. Winston, 470 U.S. at 759 (holding that a nonconsensual “surgical intrusion into an individual’s
body for evidence” without a compelling state need is
unreasonable).
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)
15a
(“[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.
In re Cincinnati Radiation Litigation is a good
example. Funded by the Department of Defense,
government officials at the University of Cincinnati
subjected cancer patients to radiation doses consistent with those expected to be inflicted upon military
personnel during a nuclear war. 874 F. Supp. at 802–
04. The patients were in “reasonably good clinical
3 Some defendants contend actual and targeted physical force
by a government actor is requisite for a bodily integrity
invasion. But as set forth, the right to bodily integrity’s anchor
is control of one’s own person by way of informed consent, and
thus the method upon which the government enters the body is
irrelevant. Boler, 865 F.3d at 408 n.4; see also Planned
Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 857
(1992) (plurality op).
4 See, e.g., Barrett v. United States, 798 F.2d 565 (2d Cir. 1986);
Lojuk v. Quandt, 706 F.2d 1456 (7th Cir. 1983); Rogers v. Okin,
634 F.2d 650 (1st Cir. 1980), overruled on other grounds sub
nom, Mills v. Rogers, 457 U.S. 291 (1982); Bounds v.
Hanneman, 2014 WL 1303715 (D. Minn. Mar. 31, 2014);
Heinrich v. Sweet, 62 F. Supp. 2d 282 (D. Mass. 1999); Stadt v.
Univ. of Rochester, 921 F. Supp. 1023 (W.D.N.Y. 1996); In re
Cincinnati Radiation Litigation, 874 F. Supp. 796 (S.D. Ohio
1995); Davis v. Hubbard, 506 F. Supp. 915 (N.D. Ohio 1980).
16a
condition,” and were “primarily indigent, poorly
educated, and of lower than average intelligence.” Id.
at 803. At no time did the government actors disclose
the risks associated with the massive radiation doses
or obtain consent to irradiate the patients at those
levels for those purposes—they instead told the
patients that the radiation was treatment for their
cancer. Id. at 803–04. Summarizing the caselaw just
mentioned, the Cincinnati Radiation court easily
concluded that “[t]he right to be free of statesponsored invasion of a person’s bodily integrity is
protected by the Fourteenth Amendment guarantee
of due process.” Id. at 810–11. The involuntary and
misleading nature of the intrusions was key. The
patients could not “be said to exercise that degree of
free will that is essential to the notion of voluntariness” because:
[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
17a
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 knowingly and intentionally introducing
life-threatening substances into individuals without
their consent, especially when such substances have
zero therapeutic benefit.”
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 pushand-pulls of competing policy decisions that
generally fall outside the scope of a violation of the
right to bodily integrity—there, the government
18a
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; Claybrook v. Birchwell, 199
F.3d 350, 359 (6th Cir. 2000) (holding that
conscience-shocking behavior must be taken
“towards the plaintiff’s federally protected rights”);
see also Vargas v. City of Phila., 783 F.3d 962, 973
(3d Cir. 2015) (“To sustain a substantive due process
19a
claim, a plaintiff must show that the particular
interest in question is protected by the Fourteenth
Amendment and that the government’s deprivation
of that interest ‘shocks the conscience.’”); United
States v. Sanders, 452 F.3d 572, 577 n.4 (6th Cir.
2006) (similar); Martinez v. Cui, 608 F.3d 54, 64 (1st
Cir. 2010) (similar).5
“[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. Dueprocess-violative conduct (there, forced stomach
pumping to obtain evidence) “shocks the conscience,”
5 In dicta, we stated in Range that “[o]ur case law on
substantive due process is somewhat conflicted as to whether
an underlying constitutionally-protected right must be established in order for a government action to violate one’s rights by
shocking the conscience,” and then cited EJS Properties for the
proposition that in non-zoning decision contexts “we have held
that ‘government action may certainly shock the conscience or
violate substantive due process without a liberty or property
interest at stake.’” 763 F.3d at 589 (quoting EJS Props., 698
F.3d at 861–62). For that statement, EJS Properties, in dicta as
well, cited two pre-Lewis cases, and more importantly,
American Express—a case involving a constitutional challenge
to a state law. 698 F.3d at 861–62. Range’s and EJS Properties’
dicta misconstrue American Express, which expressly held “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,” unless the matter involves a constitutional challenge
to a state law. Am. Express, 641 F.3d 688–89 (citation omitted).
This is consistent with Lewis. 523 U.S. at 847 n.8.
20a
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.
To aid this inquiry, we are to place the alleged
heinous conduct on a spectrum, “[t]he bookends [of
which] present the easier cases.” Id. On the one end
is conduct that “is categorically beneath the
threshold of constitutional due process,” mere negligence. Lewis, 523 U.S. at 849. Conduct that is
“intended to injure in some way unjustifiable by any
government interest” represents the other end, for
this behavior “would most probably support a
substantive due process claim.” Id. We deal here not
with these extremes, but rather in the middle, what
the Court has deemed “something more than
negligence but less than intentional conduct, such as
recklessness or gross negligence.” Id. (internal
quotation marks omitted).
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
21a
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 Fourteenth
Amendment’s guarantee of substantive due process
by causing death through deliberate or reckless
indifference to life in a high-speed automobile chase
aimed at apprehending a suspected offender.” Id. at
836. The Court held that “high-speed chases with no
intent to harm suspects physically or to worsen their
legal plight do not give rise to liability under the
Fourteenth Amendment . . . .” Id. at 854. In so
holding, the Court highlighted how the time to
deliberate in one circumstance may dictate liability
in one situation but not another because “[a]s the
very term ‘deliberate indifference’ implies, the
standard is sensibly employed only when actual
deliberation is practical[.]” Id. at 851. Take a classic
deliberate indifference situation—when, for example,
a prison official has “time to make unhurried
judgments, [with] the chance for repeated reflection,
largely uncomplicated by the pulls of competing
obligations.” Id. at 853. It is in these kinds of
situations where we would expect plaintiffs asserting
substantive due process claims based on deliberate
indifference to be most successful. In rapidly evolving situations like prison riots, high-speed chases,
22a
and other tense, split-second-reaction-demanding
matters, we apply “a much higher standard.” Id. at
852–54. We look instead to whether the state actor
applies force “maliciously and sadistically for the
very purpose of causing harm”—in other words,
whether he acted with an intent to harm. Id. at 853.
“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
23a
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).
We have identified a multitude of considerations
when evaluating an official’s alleged arbitrariness in
the constitutional sense, including the time for
deliberation, the nature of the relationship between
the government and the plaintiff, and whether a
legitimate government purpose motivated the
official’s act. Hunt, 542 F.3d at 536. These factors
help elucidate Lewis’s broader point that simply
making bad choices does not rise to the level of
deliberate indifference. Rather, “[f]or us to find
deliberate indifference, . . . we must find not only
that the governmental actor chose to act (or failed to
act) despite a subjective awareness of substantial
risk of serious injury, but we also must make some
assessment that he did not act in furtherance of a
countervailing governmental purpose that justified
taking that risk.” Id. at 541; see also Schroder, 412
F.3d at 729 (“Many, if not most, governmental policy
choices come with risks attached to both of the
competing options, and yet ‘it is not a tort for government to govern’ by picking one option over another.”
24a
(citation omitted)). “Essentially, the more voluntary
the plaintiff-government relationship, or the less
time the state actor has to deliberate, or the greater
the extent to which the state actor is pursuing a
legitimate end, the less arbitrary we should deem a
bodily injury or death caused by the state actor.”
Durham v. Estate of Losleben, 744 F. App’x 268, 271
(6th Cir. 2018). We agree with the district court that
these considerations weigh in favor of finding that
the generally alleged conduct was so egregious that
it can be said to be “arbitrary in the constitutional
sense.”6
6 Several defendants suggest we should depart from this line of
authorities and instead reject plaintiffs’ claim on the basis of
the Supreme Court’s pre-Lewis decision in Collins, where the
Supreme Court rejected a substantive due process claim that
“the Federal Constitution imposes a duty on the city to provide
its employees with minimal levels of safety and security in the
workplace” and the city’s deliberate indifference to employee
safety shocked the conscience. 503 U.S. at 125–26. True, the
substantive due process clause “confer[s] no affirmative right to
government aid, even where such aid may be necessary to
secure life, liberty, or property interests of which the government itself may not deprive the individual,” DeShaney, 489 U.S.
at 195, nor does it set a floor for the public’s right to be safe and
secure, see Collins, 503 U.S. at 127. But these general principles have no applicability here—this is not a workplace injury
case, plaintiffs do not allege Flint was required to provide them
with “certain minimal levels of safety and security,” id., and
DeShaney itself makes clear in the same token that injuries
caused by the state are of a different ilk. 489 U.S. at 195–96.
Nor is there a contention that—unlike many public employees
hired to perform inherently dangerous jobs who thus “assumed
the risk,” Hunt, 542 F.3d at 538—Flint residents voluntarily
consumed the water in the face of likely lead-exposure. For
these reasons, our post-Collins, pre-Lewis caselaw relied upon
by defendants is similarly distinguishable. See, e.g., Lewellen,
[Footnote continued on next page]
25a
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 this known risk
cannot be excused on the basis of split-second decision making. All of the alleged decisions by defendants leading up to and during the crisis took place
over a series of days, weeks, months, and years, and
did not arise out of time-is-of-the-essence necessity.
Their “unhurried judgments” were replete with
opportunities for “repeated reflection, largely uncomplicated by the pulls of competing obligations,” and
thus militate in plaintiffs’ favor. Lewis, 523 at 853;
see also Ewolski, 287 F.3d at 511–12. In the Court’s
words, because “[w]hen such extended opportunities
to do better are teamed with protracted failure even
to care, indifference is truly shocking.” Lewis, 523
U.S. at 853.
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
[Footnote continued from previous page]
34 F.3d 345; Upsher v. Grosse Pointe Pub. Sch. Sys., 285 F.3d
448 (6th Cir. 2002).
26a
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 “for the benefit of the
public,” normally its deliberate choice does not shock
the conscience. See Hunt, 542 F.3d at 542. There is a
caveat to this general rule—acting merely upon a
government interest does not remove an actor’s
decision from the realm of unconstitutional arbitrariness. Id. at 543 (“[W]e have held open the possibility
that in extreme cases the governmental actor’s choice
7 See also Briscoe v. Potter, 355 F. Supp. 2d 30, 45–47 (D.D.C.
2004) (holding that plaintiffs sufficiently alleged conscienceshocking conduct where defendants knew a post office distribution center was contaminated with anthrax, made affirmative
misrepresentations about the facility’s safety, and coerced
plaintiffs into continuing to work at the facility).
27a
to endanger a plaintiff in the service of a countervailing duty would be deemed arbitrary[.]”). Here,
jealously guarding the public’s purse cannot, under
any circumstances, justify the yearlong contamination of an entire community. In the words of the
Michigan Court of Appeals, “we can conceive of no
legitimate governmental objective for this violation
of plaintiffs’ bodily integrity.” Mays, 916 N.W.2d at
262. (Some defendants contend their actions were
motivated by other legitimate government purposes,
and we address their positions below.)
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 deliberateindifference 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.
28a
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 problems associated with lead exposure. Earley,
for example, “forced the transition through” despite
knowing how important it was that “the treatment
plant be ready to treat Flint River water” and that
“[t]he treatment plant was not ready.” Similarly,
Croft permitted the water’s flow despite knowing
“that the City’s water treatment plant was unprepared to adequately provide safe drinking water to
Flint’s residents.” The Flint defendants also made
numerous statements to the public proclaiming that
the water was safe to drink. Defendant Ambrose’s
decisions to twice turn down opportunities to reconnect to the DWSD after he knew of the significant
problems with the water were especially egregious.
These and other asserted actions plausibly allege
deliberate indifference and “plain[] incompeten[ce]”
not warranting qualified immunity. al-Kidd, 563
U.S. at 743 (citation omitted). To the extent these
defendants claim “mistakes in judgment” because
they reasonably relied upon the opinions of Michigan
Department of Environmental Quality (MDEQ)
employees and professional engineering firms, see
Pearson, 555 U.S. at 231, those are facts to be fleshed
out during discovery and are not appropriate to
resolve at the motion-to-dismiss posture. See, e.g.,
Wesley, 779 F.3d at 433–34.
29a
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 against defendants
Busch, Shekter-Smith, Prysby, and Wurfel are
numerous and substantial. These MDEQ defendants
played a pivotal role in authorizing Flint to use its
ill-prepared water treatment plant to distribute
drinking water from a river they knew was rife with
public-health-compromising complications. Furthermore, when faced with the consequences of their
actions, they falsely assured the public that the
water was safe and attempted to refute assertions to
30a
the contrary. A few poignant examples further
illustrate their culpability:
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
31a
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
32a
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 coverup 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. 40 C.F.R. § 141.80 et. seq.
More specifically, it requires a “large system,” like
Flint, to optimize corrosion control treatment before
distribution of water to the public. § 141.81(a)(1).
However, MDEQ employees did not follow this
dictate; instead, under a “flawed interpretation” of
the Rule, they drew up a yearlong sampling program
post-switch (broken up into two, six-month
monitoring periods) to determine whether corrosion
controls were required. In their view, this after-the-
33a
fact-wait-and-see approach to corrosion controls
allegedly fell within minimum compliance levels of
the Rule. Plaintiffs’ view is bleaker. They assert
MDEQ 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. To be sure, plaintiffs’ view must be
based on reasonable inferences from factual allegations. The district court correctly found that it is.
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 Benzman v. Whitman, 523 F.3d
119 (2d Cir. 2008), chiefly for the reason that those
matters involved the balancing of competing governmental interests—restoring public services and
protecting public health—during a time-sensitive
environmental emergency. We have no such similar
facts here on the face of plaintiffs’ complaint.
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
34a
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.
E.
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
35a
the water, and there is no allegation that they took
any action causing plaintiffs to consume the leadcontaminated 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 postwater-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
8 They also allege 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. He knew as early as 2014 of problems with lead
and legionella contamination in Flint’s water and instead of
fulfilling his duty to protect and notify the public, he participated in hiding this information.” (Plaintiffs make the same
general allegation against Wells.) But this is precisely the type
of “chimerical,” “bare assertion[]” Iqbal requires we set aside.
556 U.S. at 681.
36a
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. HannaAttisha showing the tripling of blood lead
levels, Wells “responded that the state
was working to replicate HannaAttisha’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.
37a
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:
38a
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 emailed 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. HannaAttisha—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.’”
39a
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
40a
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 and
Peeler’s inaction to causing Flint residents to consume (or continue to consume) lead-tainted water.
Nor do plaintiffs identify a source of law for the
proposition that an individual violates the right to
bodily integrity just because he failed to “blow the
whistle.” Plaintiffs have therefore not plausibly
alleged Scott and Peeler engaged in conscienceshocking conduct.
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).
41a
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 lifethreatening 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
42a
‘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).
Knowing the Flint River water was unsafe for
public use, distributing it without taking steps to
43a
counter its problems, and assuring the public in the
meantime that it was safe “is conduct that would
alert a reasonable person to the likelihood of personal liability.” Scicluna v. Wells, 345 F.3d 441, 446
(6th Cir. 2003). As set forth above, 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.9 These “actions violate the heartland of the
constitutional guarantee” to the right of bodily integrity, Stemler v. City of Florence, 126 F.3d 856, 867
(6th Cir. 1997), and “t[he] obvious cruelty inherent”
in defendants’ conduct should have been enough to
forewarn defendants. Hope, 536 U.S. at 745.
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 a 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
9 See also Wright v. City of Phila., 2015 WL 894237, at *13
(E.D. Penn. March 2, 2015) (“[I]t would have been clear to a
reasonable [government] employee that causing the release of
airborne asbestos in Plaintiffs’ home and then failing to notify
Plaintiffs or acting in any way to mitigate the harm caused by
the release, was unlawful under the circumstances.”).
44a
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—encompasses an individual’s liberty interest to refuse “food
and water essential to life.” Id. at 279. And if an
individual has a right to refuse the consumption of
beneficial water, then certainly any reasonable
official would understand that an individual has a
right to refuse the consumption of water known to be
lead-contaminated, especially when those individuals
involved in tainting the water simultaneously
vouched for its safety. Put differently, plaintiffs’
bodily integrity claim implicates a clearly established
right that “may be inferred from [the Supreme
Court’s] prior decisions.” Id. at 278. Before Cruzan, a
factually identical case had not been decided by the
Court. Nonetheless, the Supreme Court held that the
right to bodily integrity claim there was compelled by
the logic and reasonable inferences of its prior
decisions. Id. at 270, 278–79. The same is true here.
Several defendants take issue with the district
court’s definition of the right, contending it deals in
45a
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 the qualified immunity standard to be
realized.” Baynes, 799 F.3d at 614 (quoting Hope, 536
U.S. at 742).10
10 Some defendants and the dissent direct us to dicta in a
recent District of New Jersey case involving a bodily integrity
claim arising out of the discovery of leaded water in the
Newark, New Jersey’s public-school buildings. See Branch v.
[Footnote continued on next page]
46a
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 “affront 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
[Footnote continued from previous page]
Christie, 2018 WL 337751 (D.N.J. Jan. 8, 2018). We are not
obligated to give this decision, let alone its dicta, any persuasive
value. See Baker, 471 F.3d at 606. The opinion is bereft of any
substantive analysis regarding the right to bodily integrity, and
wholly omits discussion of the Supreme Court cases mentioned
in detail here. It is also factually distinct in at least one major
aspect—here, the government officials participated in the
decision to taint Flint’s water-supply in the first instance;
there, the government officials failed to take action upon
discovery of the leaded water.
47a
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
Eleventh Amendment provides that “[t]he Judicial
power of the United States shall not be construed to
11 We deny plaintiffs’ pending motion to take judicial notice of
pending but unproven criminal charges against some of the
defendants and note that that the district court erred in doing
so and using them to justify denying qualified immunity. First,
although courts may consider judicially noticed facts when
evaluating motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6), see, e.g., Buck v. Thomas M. Cooley Law
Sch., 597 F.3d 812, 816 (6th Cir. 2010), we have held that a
“criminal indictment qualifies as a matter outside the pleading”
therefore necessitating conversion to a Rule 56 motion. Rose v.
Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir.
2000) (brackets and internal quotation marks omitted). Second,
it was error for the district court to consider the charges for
qualified-immunity purposes without engaging in the proper
analysis. The Supreme Court has made clear that “[o]fficials
sued for constitutional violations do not lose their qualified
immunity merely because their conduct violates some statutory
. . . provision.” Davis v. Scherer, 468 U.S. 183, 194 (1984).
Instead, government officials are “liable for damages only to the
extent that there is a clear violation of the statutory rights that
give rise to the cause of action for damages.” Id. at 194 n.12.
They do not “lose their immunity by violating the clear command of a statute . . . unless that statute . . . provides the basis
for the cause of action sued upon.” Id. Here, the district court
failed to consider whether the charges could be considered
under this standard.
48a
extend to any suit in law or equity, commenced or
prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects
of any Foreign State.” U.S. Const. amend. XI. It bars
suits against a state by its own citizens, and by
citizens of another state. See, e.g., Bd. of Trs. of Univ.
of Ala. v. Garrett, 531 U.S. 356, 363 (2001). “The
ultimate guarantee of the Eleventh Amendment is
that nonconsenting States may not be sued by
private individuals in federal court.” Id.
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 Eleventh Amendment to suit
in federal court extends to States and state officials
in appropriate circumstances, but does not extend to
counties and similar municipal corporations.” Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429
U.S. 274, 280 (1977) (internal citations omitted); see
also Jinks v. Richland Cty., 538 U.S. 456, 466 (2003)
(“[M]unicipalities, unlike States, do not enjoy a
constitutionally protected immunity from suit.”). We
have even noted this contrast in one of our previous
Flint Water Crisis cases, stating in dicta that the
Eleventh Amendment does not apply to “the defendants associated with the City of Flint.” Boler, 865
F.3d at 410.
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
49a
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 body and the
office of chief administrative officer of the local
government.” Mich. Comp. Laws § 141.1549(2); see
generally Phillips v. Snyder, 836 F.3d 707, 711–12
(6th Cir. 2016) (summarizing Michigan’s Local
Financial Stability and Choice Act (or Public Act
436)). Flint contends it became an arm of the state
because of the State of Michigan’s takeover. We thus
find it more appropriate to resolve whether this
extraordinary factor dictates a different outcome. See
Monell v. Dep’t of Soc. Servs. of City of New York, 436
U.S. 658, 690 n.54 (1978) (suggesting that under
some circumstances, local governmental units could
be “considered part of the State for Eleventh Amendment purposes”). On de novo review, see Babcock v.
Michigan, 812 F.3d 531, 533 (6th Cir. 2016), we
agree with the district court that the City of Flint is
not entitled to Eleventh Amendment immunity.12
A.
“The entity asserting Eleventh Amendment
immunity has the burden to show that it is entitled
to immunity, i.e., that it is an arm of the state.” Lowe
12 Flint requests that we either certify the question of whether
Public Act 436 transforms municipalities into arms of the state
to the Michigan Supreme Court, or delay our opinion “until
after Michigan courts have had an opportunity to answer it.”
Certification is not appropriate here—Flint did not make the
same request to the district court and we have the appropriate
data points to address the issue. See, e.g., In re Amazon.com,
Inc., Fulfillment Ctr. Fair Labor Standards Act (FLSA) & Wage
& Hour Litig., 852 F.3d 601, 607–08 (6th Cir. 2017).
50a
v. Hamilton Cty. Dep’t of Job & Family Servs., 610
F.3d 321, 324 (6th Cir. 2010) (brackets and citation
omitted). We have identified four factors relevant to
“whether an entity is an ‘arm of the State’ on the one
hand or a ‘political subdivision’ on the other”: “(1) the
State’s potential liability for a judgment against the
entity; (2) the language by which state statutes, and
state courts refer to the entity and the degree of state
control and veto power over the entity’s actions;
(3) whether state or local officials appoint the board
members of the entity; and (4) whether the entity’s
functions fall within the traditional purview of state
or local government.” Ernst v. Rising, 427 F.3d 351,
359 (6th Cir. 2005) (en banc) (internal citations
omitted).
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 inquiry will generally be the
most important factor, . . . it is not the sole criterion.”
Ernst, 427 F.3d at 364 (internal quotation marks
omitted). This is so because sovereign immunity
protects not only a state’s purse but also its dignity—
“it . . . serves to avoid the indignity of subjecting a
State to the coercive process of judicial tribunals at
the instance of private parties.” Seminole Tribe v.
Florida, 517 U.S. 44, 58 (1996) (citation omitted).
Accordingly, “the last three factors may demonstrate
that an entity is an arm of the state entitled to
sovereign immunity despite the fact that political
subdivisions and not the State are potentially liable
for judgments against the entity.” Pucci v.
51a
Nineteenth Dist. Court, 628 F.3d 752, 762 (6th Cir.
2010). To do so, however, they must “far outweigh”
the first factor. Id. at 761. Applying this test, we
conclude the City of Flint has not met its burden to
show that it was an “arm of the state” protected by
the Eleventh Amendment.13
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 Mich.
Comp. Laws § 600.6093(1), while the state treasury
pays judgments against “arms of the state.” See
Mich. Comp. Laws §§ 600.6458(2), 600.6096(1).
Public Act 436 does not change this; in fact, it
reinforces this dynamic, providing that any claims,
demands, or lawsuits “arising from an action taken
during the services of [an] emergency manager” are
13 Citing Cash v. Granville County Board of Education, 242
F.3d 219 (4th Cir. 2006), Flint quizzically argues it can
separately show it is entitled to Eleventh Amendment immunity under a “sovereign dignity” inquiry independent from the
traditional Ernst factor test set forth in text. This argument is
not well-taken. For one, we are bound by our en banc decision
in Ernst, not the Fourth Circuit’s decision in Cash. For another,
Cash does not hold, as Flint suggests, that “[e]ven if a defendant fails the Ernst test, it may still enjoy sovereign immunity
if the judgment would adversely affect the dignity of the State
as a sovereign.” Rather, it holds consistent with our caselaw,
that the “state purse” factor is foremost, but in certain situations “sovereign dignity factors”—i.e., Ernst factors two, three,
and four—can lead to a finding of sovereign immunity. Id. at
224; see also Pucci, 628 F.3d at 761. Put differently, our Ernst
factors already take state dignity into account when evaluating
application of the Eleventh Amendment.
52a
to “be paid out of the funds of the local government
that is or was subject to the receivership administered by that emergency manager.” Mich. Comp.
Laws § 141.1560(5). Most critically, Public Act 436
“does not impose any liability or responsibility in law
or equity upon th[e] state, any department, agency,
or other entity of th[e] state, or any officer or
employee of th[e] state, or any member of a
receivership transition advisory board, for any action
taken by any local government under this act, for
any violation of the provisions of this act by any local
government, or for any failure to comply with the
provisions of this act by any local government.” Mich.
Comp. Laws § 141.1572. Michigan’s lack of potential
liability here creates a “strong presumption” against
an Eleventh Amendment finding. See Kreipke, 807
F.3d at 777.
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.” Mich. Const. Art. 7, § 22 (1963). The
Michigan Supreme Court has also held that home
rule cities like Flint “enjoy not only those powers
specifically granted, but they may also exercise all
powers not expressly denied.” AFSCME v. City of
53a
Detroit, 662 N.W.2d 695, 707 (Mich. 2003) (citation
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