A federal appeals court last Friday affirmed the dismissal of a class action lawsuit against the city of Jackson, Mississippi, that alleged the city caused and knowingly allowed people to drink water contaminated with lead, causing serious health problems for children.
The lawsuit filed in 2022 by four residents claims that the city’s actions and failures caused lead to enter Jackson’s drinking water at unsafe levels and that public officials intentionally misled and lied to the public, telling them the water was safe to drink when they knew it wasn’t.
The complaint argued that the city violated the plaintiffs’ constitutional rights to due process and deprived them of “life and liberty” as guaranteed by the Fourteenth Amendment.
Specifically, the plaintiffs alleged that Jackson and several of its officials violated their right to bodily integrity and to be free from exposure to water that was contaminated as a result of their acts or omissions, and the right to be free from state-caused harm by receiving untruthful information from public officials about the presence of contaminants in drinking water.
The defendants deprived the people of Jackson from these rights “through two mediums: pipes and lies,” the plaintiffs asserted.
‘The Constitution Does Not Guarantee Clean Water’
After the court heard oral arguments in May and reviewed the parties’ briefs, the majority opinion of the Fifth Circuit Court of Appeals issued on Sept. 4 rejected the plaintiffs’ legal arguments, finding “Plaintiffs injuries are not constitutionally cognizable,” noting the absence of “any historical basis” or binding precedent under the Due Process Clause to find the city or its individually named officials liable.
“The Constitution does not provide redress for every governmental wrongdoing,” U.S. Circuit Judge Kurt D. Engelhardt, a Trump appointee, wrote for the majority in the 10-5 decision. “Rather, the remedy for Plaintiffs’ injuries lies in pursuing tort claims, electing representatives who will better manage the public-water system, and petitioning their representatives for other remedies.”
Noting that the state of Mississippi and the federal government have “worked for years, and continue today, to improve the City of Jackson’s drinking water quality through regulations, investigations, and compliance plans,” the judge said, “these already-established-and-undertaken avenues are the proper course for rectifying the lead contamination. We will not expand the Fourteenth Amendment to create novel theories of constitutional liability. … It is undisputed that Constitution does not guarantee clean water.”
Engelhardt added that the majority finds “no deeply rooted history or tradition establishing a constitutional right to truthful information from officials during a public health crisis.”
Dissenting Judges’ Opinion
But the five judges who dissented found the plaintiffs’ “plausibly-pleaded allegations” against the city and its legal arguments persuasive enough to merit “a claim for constitutional injury” and to return the case to the federal district court that dismissed the complaint in 2024 for further discovery.
U.S. Circuit Judge Catharina Haynes, writing for the dissenting group, noted that the city of Jackson introduced lead to the water supply “and exacerbated its presence.”
Former Mayor Tony Yarber was aware that the city’s water treatment plants were incapable of adequately treating the water to prevent corrosion of the city’s water pipes, “yet he scrapped plans for improving, and affirmatively worsened, the situation,” Haynes wrote.
In their pleadings, the plaintiffs say the Jackson Public Water System provides water to about 173,500 people in and around Jackson, almost a quarter of whom are children.
Jackson’s population is more than 82 percent Black and has a poverty rate almost double the national average, at nearly 28 percent, according to the U.S. Census Bureau.
The federal and Mississippi Safe Drinking Water Acts (SDAA) require water system operators to monitor water quality and to ensure, for example, that it has a proper PH so that the water does not become too acidic, which exacerbates lead to leaching out of pipes, the complaint says.
But the Jackson water system’s monitoring equipment was not functional for years, and lead and copper tap monitoring and corrosion control procedures weren’t implemented, records show, a situation that then-Public Works Director Kishia Powell, Mayor Yarber and other city officials allegedly knew of and decided to ignore.
A Known Problem
Testing from 2010 to 2013 by the state health department showed the concentration of lead in Jackson’s drinking water “increased at an alarming rate,” but the city officials “exhibited deliberate indifference and actively impeded efforts to remediate the public health crisis,” the plaintiffs contend, including by taking actions such as switching water sources from relatively safe well water to the highly acidic water drawn from the Pearl River and a local reservoir.
In 2015, when testing revealed that lead levels exceeded the regulatory limit, city officials didn’t “notify the public of these extremely hazardous conditions until seven months later.”
In March of 2020, the Environmental Protection Agency issued an order citing multiple SWDA violations and stating the water system “present[s] an imminent and substantial endangerment to the persons served by the system,” enumerating longstanding serious issues “already known to city officials for years.”
Instead of issuing public notices to alert citizens of the toxic chemicals in their drinking water, city officials “chose to cover up and downplay the severity of the Jackson water crisis and publicly deny it was physically harming its residents” for another year, the plaintiffs say.
“As a result of the city’s actions, Plaintiffs will be forced to contend with the lifelong effects of ingesting this lead,” Judge Haynes wrote, noting that several of plaintiff Priscilla Sterling’s children have been diagnosed with lead poisoning, and that plaintiffs Shawn Miller and John Bennett, “alongside their respective households, ‘are exhibiting effects of lead-poisoning or other water contamination.’”
“At bottom,” the judge wrote, “the well-pleaded allegations” in the plaintiffs’ complaint “mirror in various ways one of the worst public health crises in recent American history — the Flint water crisis.”
Residents’ Legal Arguments Hold Water, Dissenters Say
Disagreeing with the majority, Haynes found that the plaintiffs had adequately argued their federal due process claims regarding their rights to bodily integrity and to be protected from state-created dangers.
She noted that at least 10 “of our sister circuits have adopted a state-created danger exception” to the general rule that the Due Process Clause “does not require the government to protect its citizens from the acts of private actors.”
The right to bodily integrity “is longstanding and well-established under the Due Process Clause,” Haynes wrote, explaining that the Supreme Court has found that “lead and its compounds are toxic to human beings” and that “lead introduced to Plaintiffs’ water supply without their consent” is “arguably more egregious than some of the situations considered by the Supreme Court in its other cases involving alleged violations of bodily integrity.”
She cited Guertin v. Michigan, a landmark case in which the Sixth Circuit held in 2019 that plaintiffs “plausibly alleged that public officials’ actions during the Flint Water Crisis violated plaintiffs’ rights to bodily integrity.”
Engelhardt, writing for the majority, said, “We are not bound, nor persuaded by” the Guertin decision in considering violations of due process against the city of Jackson because the latter case involves “conduct that would not have violated the Constitution when the Fourteenth Amendment was adopted.”
Haynes concluded that “at minimum, Plaintiffs are entitled to discovery on their sufficiently plausible allegations that the City violated their constitutional rights, and the proper course is for this case to be remanded to the district court to allow such discovery to occur.”
She agreed with the majority opinion that the city officials are entitled to qualified immunity on the plaintiffs’ federal civil rights claims, but she recommended further consideration by the district court of their state law claims.
What’s Next In The Case
Attorneys for the plaintiffs, who did not immediately respond to a request for comment from Atlanta Black Star, have not yet publicly disclosed whether they plan to appeal the case to the Supreme Court.
Jackson City Attorney Drew Martin said in a statement that the decision “brings this case to an important conclusion at the appellate level.”
Jackson Mayor John Horhn said that the city was pleased with the Fifth Circuit’s decision and that Jackson “remains committed to the health, safety, and well-being of every Jackson resident.”
