Battery and Deprivation of Liberty

How to begin to compensate Flint residents for their drinking water fiasco.

Flint fund.
Justin Roberson, 6, and Mychal Adams, 1, wait with a stack of bottled water at a rally where the Rev. Jesse Jackson was speaking about the water crisis at the Heavenly Host Baptist Church on Jan. 17, 2016, in Flint, Michigan.

Photo by Bill Pugliano/Getty Images

Residents of Flint, Michigan, have been drinking toxic tap water since late 2014, but only in recent days has this public health and human rights disaster finally gotten the attention it deserves. Hillary Clinton directed angry attention to the problem during the recent Democratic debate. President Obama called it “inexplicable and inexcusable.” Michigan Gov. Rick Snyder apologized for what he called a “catastrophe” during his State of the State address on Tuesday, but that’s not likely to quell calls for his resignation.

An investigation is underway, and those who knew that the water wasn’t safe but actively encouraged the public to continue drinking it could be criminally liable. The sorry situation, in a city with a majority black population and a median income at about half the state average, is a new and powerful weapon in the Black Lives Matter movement—because in Flint, they pointedly did not. It’s a case that practically defines the term “environmental racism.”

And while criminal accountability and political consequences are appropriate, they won’t do anything to help the people who drank, cooked with, bathed in, and cleaned with the contaminated water and have suffered injury as a result. Three class-action lawsuits aim for financial redress for Flint residents. The suits present a devastating chronicle of official misconduct by state and local officials, and Michigan lawmakers should take steps to atone for this awful story as quickly as possible. The best way to do that is by establishing a fund to compensate victims for their personal injuries, their property damage, and the decrease in the value of their homes.

A full account of the epic misfeasance involved in this case would consume pages and has been ably accomplished in other places, including in one of the most recent class-action complaints. (For a good bedtime horror story, setting forth the plaintiff’s version of the timeline, scan paragraphs 61 through 173 of the Mays v. Genesee County complaint, available here.) A brief account will be helpful, though.

In early 2014, Flint decided to save money by ending its 50-year contract with the Detroit Water and Sewerage Department, thereby switching the city’s water source from Lake Huron to the Flint River. This (supposedly) money-saving action was in dumb defiance of a 2011 report, commissioned by the city itself, that declared the river’s water too corrosive to safely use without anti-corrosive agents.

What followed was a course of official misconduct scarcely to be believed. In apparent disregard of the federal Safe Drinking Water Lead and Copper Rule, no anti-corrosive agents were used. Lead leached into the water supply and was measured at unacceptably high levels. The Michigan Department of Health and Human Services is charged with concealing a threefold spike in the lead levels of children younger than 6. The Environmental Protection Agency measured lead levels in the river high enough to be classified as “hazardous waste,” and a presentation by the American Civil Liberties Union of Michigan found similar toxicity in a private home.

Lead was not the only toxic culprit. The complaint also points to 10 deaths over an 18-month period from Legionnaires’ disease, a spike attributed to the presence of legionella bacteria in the water supply.

The lawsuits claim that state and local officials ignored these and other red flags, and that Flint’s “emergency manager” (who effectively ran Flint when the state wrested control of the city from local officials some years earlier) refused to reconnect to the Detroit Water supply long after it became clear that this was the only responsible course of action. Officials with the Michigan Department of Environmental Quality are also charged with flat-out lying to the public about the safety of the water.

After this gruesome story oozed out, Flint’s new emergency manager finally approved reconnecting Flint to water from Lake Huron. It’ll take time for the water to “recover”; until then, the National Guard, along with state and local officials, have been going door to door with filters, lead test kits, and bottled water.

The three class-action lawsuits all list the same plaintiffs—an assortment of families, couples, and single people who claim a variety of physical and emotional damages from exposure to Flint River water. The list includes people with elevated lead levels, seizures, lesions, memory loss, hypertension, and post-traumatic stress disorder. Alleged damages to their water pipes and reductions in the value of their property value round out the complaints.

That there are three such suits is a reflection of the complex state of both federal and Michigan state law when it comes to suing the government and the officials who act on its behalf. Because of state and local immunity, and the narrow reading the U.S. Supreme Court has given to claims alleging violations of constitutional rights, success in all of these suits depends on showing that government actors weren’t just negligent. Accordingly, the federal and state suits charge that these bureaucrats and elected officials intentionally harmed Flint residents, by lying to them about water safety.

This kind of intentional misrepresentation, resulting in an unauthorized contact with the plaintiffs’ bodies, ties the suits together nicely. Under state law, plaintiffs hope to prove the elements of a claim of battery—intending and making harmful contact. That’s simple enough.

The constitutional claim is fascinating, though. A federal statute gives injured parties the right to sue state officials for violations of their constitutional rights. (And because the claims are anchored in the U.S. Constitution, state immunity does not apply.) Often, these claims are to redress police misconduct in defiance of the Fourth Amendment’s guarantee against unreasonable searches and seizures.

The claim here is different, though: The cumulative effect of the cascade of events was to deprive residents—the named plaintiffs and those they seek to represent in the class action—of their liberty interest under the 14th Amendment. That’s not a much-used tactic, but it’s a smart one in this case. Although the contours of “liberty” are contested (as the 5–4 decision in Obergefell v. Hodges, the gay marriage case, attests), the right to be free from unwanted interference with one’s body is as basic as rights get.

The Supreme Court endorsed this conclusion in the 1990 case Cruzan v. Missouri Department of Health, holding that a person had the right to refuse life-saving nutrition and hydration. That right stems naturally from the ancient common law rule that “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body.” Although the doctrine was applied in the medical context there, if anything the case is clearer here—because there’s no good reason, such as medical necessity, for the “contact” with toxic water that the defendants are alleged to have caused.

So if public officials are found to have willfully violated residents’ rights to bodily integrity, they might find the walls of state and federal liability closing in on them.

The litigation is sure to be protracted and painful (though perhaps cathartic) to the victims, and a continuing black eye for Michigan, and for Flint. The best option for all is for the state to create a designated compensation fund that would mete out recovery according to well-defined categories of harms. A special master (paging Ken Feinberg!) could be appointed to administer the fund, which could achieve substantial justice. Compensation funds work especially well in cases where liability is clear (or not smart to contest), the class of victims can be identified with reasonable accuracy, and the harms can be calculated. All of those criteria are met here.

Gov. Snyder recently called the Flint water disaster “my Katrina,” belatedly creating a chillingly apt term for a crisis made worse by government inaction. As I argued several years ago, the negligent actions of the government in creating and then failing to respond to the Hurricane Katrina disaster justified a compensation fund for victims. That such a fund was never created—while two very expensive funds for the victims of Sept. 11 were—speaks loudly about whose lives matter, and whose don’t. The Flint River Compensation Fund would be a way of starting to talk back.

Read more in Slate about Flint, Michigan’s drinking water emergency.