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,

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.

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Nos. 17-1698 /1699 /1745

/1752 /1769

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

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. 

>
Nos. 17-1698 /1699 /1745 

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Guertin, et al. v. State of Mich., et al. Page 2

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 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 17-1769. 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 government-created 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 

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. 
Nos. 17-1698 /1699 /1745 

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Guertin, et al. v. State of Mich., et al. Page 3

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 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. JonesKelley, 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 
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Guertin, et al. v. State of Mich., et al. Page 4

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),1in holding that plaintiffs have pled a plausible Due 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 well-pleaded factual allegations as true, and draw all reasonable inferences 

in plaintiffs’ favor. Crosby v. Univ. of Ky., 863 F.3d 545, 551–52 (6th Cir. 2017). But if we are 

 

1The 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. 

2We have changed the docket to correct plaintiffs’ misspelling of Shekter-Smith’s name.
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Guertin, et al. v. State of Mich., et al. Page 5

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 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 
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Guertin, et al. v. State of Mich., et al. Page 6

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. Evans-Marshall 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 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 
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Guertin, et al. v. State of Mich., et al. Page 7

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 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. 

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 
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Guertin, et al. v. State of Mich., et al. Page 8

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 506–07) (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., 
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Guertin, et al. v. State of Mich., et al. Page 9

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). 

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 whether the parents 

of an individual in a persistent vegetative state could insist that a hospital withdraw lifesustaining 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 
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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 non-consensual “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) (“[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. 

 

3Some 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). 
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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 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 state-sponsored 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 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 
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Guertin, et al. v. State of Mich., et al. Page 12

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 push-and-pulls of competing policy decisions that generally fall outside the 

scope of a violation of the right to bodily integrity—there, the government 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; 
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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 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. Due-process-violative 

conduct (there, forced stomach pumping to obtain evidence) “shocks the conscience,” 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 runof-the-mill tort claims into violations of constitutional guarantees. 

 

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 nonzoning 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. 
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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 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 
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substantive due process claims based on deliberate indifference to be most successful. In rapidly 

evolving situations like prison riots, high-speed chases, and other tense, split-second-reactiondemanding 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 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). 
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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.” (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 

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 

 

6Several 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 postCollins, pre-Lewis caselaw relied upon by defendants is similarly distinguishable. See, e.g., Lewellen, 34 F.3d 345; 

Upsher v. Grosse Pointe Pub. Sch. Sys., 285 F.3d 448 (6th Cir. 2002). 
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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 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 

 

7

See also Briscoe v. Potter, 355 F. Supp. 2d 30, 45–47 (D.D.C. 2004) (holding that plaintiffs sufficiently 

alleged conscience-shocking 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).
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“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 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 

deliberate-indifference 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. 

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 
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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. 

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 
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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-healthcompromising 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 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 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. 
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• 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 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 shortterm 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 cover-up 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-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 
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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 ShekterSmith, Busch, and Prysby merely misinterpreted the Lead and Copper Rule because 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. 
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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 the water, and there is no 

allegation that they took any action causing plaintiffs to consume the lead-contaminated 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 HannaAttisha, a pediatrician at Hurley Medical Center in Flint, showing significant increases of blood 

lead levels in children post-water-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 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 

 

8They 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.
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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. Hanna-Attisha 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. 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. HannaAttisha’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: 

• 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. 
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• On September 11, 2015, Robert Scott e-mailed 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.’” 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 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 
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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 conscience-shocking 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). 

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. 
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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 life-threatening 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 ‘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). 
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Knowing the Flint River water was unsafe for public use, distributing it without taking 

steps to 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 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—

 

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.”). 
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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 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 
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the qualified immunity standard to be realized.” Baynes, 799 F.3d at 614 (quoting Hope, 

536 U.S. at 742).10

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 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

 

10Some 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. 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. 

11We 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 
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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 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 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 

 

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. 
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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 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 

 

12Flint 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). 
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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. 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 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 

 

13Citing 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. 
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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 Detroit, 662 N.W.2d 695, 707 (Mich. 2003) (citation and internal 

quotation marks omitted). Although state statutes and Michigan’s Constitution may limit these 

broad powers, Michigan’s clear preference is that municipalities have “great[] latitude to conduct 

their business.” Associated Builders & Contractors v. City of Lansing, 880 N.W.2d 765, 769 

(Mich. 2016). Flint asks us to find an exception to these general principles because it was 

engaged in providing water services to its citizens and did so while under the control of 

emergency managers. We decline to do so. 

First, citing Curry v. City of Highland Park, 219 N.W. 745 (Mich. 1928), Flint claims 

that when a municipality acts in the interest of public health, like providing water services, it 

“acts as the arm of the state” under Michigan law. Id. at 748. We disagree. For one, Curry 

noted that “the management of water works” is a “matter[] of purely local concern . . . as 

distinguished from the state at large.” Id. (citation omitted). But more importantly and as 

recently illustrated by another Flint Water Crisis case, that is not what Michigan law provides. 
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See Boler v. Governor, --- N.W.2d ---, 2018 WL 2991257 (Mich. Ct. App. 2018) (per curiam).14

The import of Michigan’s Constitution and its Home Rule City Act, Mich. Comp. Laws § 117.1, 

et seq., is that “if a municipality is supplying a utility, or specifically waterworks, to its citizens 

and the citizens are paying for the same, the municipality is operating the waterworks as a 

business and it is doing so as a businessman or corporation, not as a concern of the state 

government or arm of the state. It is, after all, serving only a limited number of people within its 

boundaries, not the state as a whole.” Id. at *4. Michigan’s Home Rule City Act expressly 

empowers a municipality to “provide for the installation and connection of sewers and 

waterworks in its charter.” Id. (citing Mich. Comp. Laws § 117.4b); see also Mich. Comp. Laws 

§§ 117.4c(1), 117.4f. But if, for example, a municipality supplies water for another purpose—

“protecting its citizens from fire or natural disaster or anything else that has the potential to have 

state-wide impact, and it is not profiting from the provision of that water”—then and only then 

could a municipality’s waterworks “perhaps” serve the state’s citizenry at large and thus be 

deemed an arm of the state. Boler, --- N.W.2d ---, 2018 WL 2991257, at *4. And as the 

Michigan Court of Appeals determined, Flint’s provision of water services clearly falls within its 

“proprietor” function and does not transform the city into an arm of the state. Id.; see also 

Collins v. City of Flint, 2016 WL 8739164, at *4 (Mich. Ct. Cl. Aug. 25, 2016). 

Second, we are equally unconvinced that Flint’s emergency-management status should 

weigh in Flint’s favor. At first blush, Flint’s argument here has some facial appeal—generally 

speaking, Public Act 436 can be a one-way ticket to state receivership. The governor, in 

consultation with several bodies, determines whether a financial emergency exists, and then 

provides the entity at issue with four options (one of which is emergency management). See 

Phillips, 836 F.3d at 712. Flint claims these options are illusory because state officials still have 

significant oversight within each option, and were nonetheless unavailable to Flint because 

 

14Michigan’s Court of Claims Act grants the Michigan Court of Claims exclusive jurisdiction “[t]o hear 

and determine any claim or demand, statutory or constitutional . . . against the state or any of its departments or 

officers.” Mich. Comp. Laws § 600.6419(1)(a). The issue presented in Boler v. Governor was whether claims 

arising out of the Flint Water Crisis against Flint were within the exclusive jurisdiction of the Court of Claims. 

Although it is strictly a statutory interpretation case, we find its analysis persuasive for it provides extensive 

discussion about the relationship between Michigan and its political subdivisions. 
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Public Act 436 kept in place Flint’s prior-appointed emergency manager under a prior version of 

the emergency manager law. See id. at 711–12; see also Mich. Comp. Laws § 141.1549(10). 

Once in receivership, the argument goes, Flint was essentially at the whim of its 

emergency managers. One need not look beyond Public Act 436’s power-authorizing provision 

to appreciate its breadth: 

Upon appointment, an emergency manager shall act for and in the place and 

stead of the governing body and the office of chief administrative officer of the 

local government. The emergency manager shall have broad powers in 

receivership to rectify the financial emergency and to assure the fiscal 

accountability of the local government and the local government’s capacity to 

provide or cause to be provided necessary governmental services essential to the 

public health, safety, and welfare. Following appointment of an emergency 

manager and during the pendency of receivership, the governing body and the 

chief administrative officer of the local government shall not exercise any of the 

powers of those offices except as may be specifically authorized in writing by the 

emergency manager or as otherwise provided by this act and are subject to any 

conditions required by the emergency manager. 

Mich. Comp. Laws § 141.1549(2) (emphasis added). In essence, an emergency manager acts 

“for and on behalf of the local government,” and may take any “action or exercise any power or 

authority of any officer, employee, department, board, commission, or other similar entity of the 

local government, whether elected or appointed, relating to the operation of the local 

government.” § 141.1552(dd)–(ee). 

There is also a certain amount of control the state has over the emergency manager. 

Among other things, an emergency manager “is a creature of the Legislature with only the power 

and authority granted by statute”; is appointed by the governor; serves at the governor’s pleasure, 

and may be removed by the governor or by impeachment by the Legislature; receives financial 

compensation from the state treasury; is subjected “to various codes of conduct otherwise 

applicable only to public servants, public officers and state officers”; and is statutorily obligated 

to submit certain plans and reports to state officials. See Mays, 916 N.W.2d at 256 (citations 

omitted). On this basis, the Michigan Court of Appeals has held (again, in a Flint Water Crisis 

matter) that an emergency manager is a “state officer” for purposes of the Court of Claims Act 
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and thus “[c]laims against an emergency manager acting in his or her official capacity therefore 

fall within the well-delineated subject-matter jurisdiction of the Court of Claims.” Id. at 257. 

The problem with Flint’s argument is that Michigan courts have rejected the notion that a 

city’s emergency management status transforms a city into a state entity. In the words of the 

Michigan Court of Appeals: 

As indicated in the Local Financial Stability and Choice Act, “it is a valid public 

purpose for this state to take action and to assist a local government in a financial 

emergency so as to remedy the financial emergency.” The primary purpose of the 

Act, then, was for the State of Michigan to assist local governments temporarily 

during a financial crisis. The emergency manager acts in the place of the chief 

administrative officer and governing body for and on behalf of the local 

government only. At all times, then, the City remained a municipality, albeit with 

a state employee temporarily overseeing the financial management of the 

municipality affairs. The City was at no time operating as “a means or agency 

through which a function of another entity i.e., the state is accomplished.” No 

function or purpose of the state was accomplished in the emergency manager 

overseeing the City. The City was instead always operating as a means through 

which functions of its own entity were accomplished. The state simply engaged a 

state employee to temporarily assist the City in performing its functions and 

serving its local purposes for its citizens. 

Boler v. Governor, --- N.W.2d ---, 2018 WL 2991257, at *6 (alterations and citations omitted); 

see also Collins, 2016 WL 8739164, at *4–5. We agree with this well-reasoned analysis. 

Moreover, it is consistent with our recent decision in Phillips, where we noted Public Act 436 

merely reflects states’ abilities “to structure their political subdivisions in innovative ways,” 

including by “allocat[ing] the powers of subsidiary bodies among elected and non-elected leaders 

and policymakers.” 836 F.3d at 715. That is, Public Act “436 does not remove local elected 

officials; it simply vests the powers of the local government in an emergency manager.” Id. at 

718. 

Given this, we conclude the second factor tilts against Flint. 

3.

The appointment factor weighs in Flint’s favor. Public Act 436 expressly provides that 

the governor appoints an emergency manager. Mich. Comp. Laws § 141.1549(1). The state 
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attempts to temper this specific appointment language by pointing out that emergency 

management under Public Act 436 is one of last resort—that upon declaration of financial 

emergency, a municipality has several options in addition to emergency management, see 

§ 141.1547, and may remove an emergency manager after 18 months (or petition the governor to 

remove the emergency manager earlier). § 1549(6)(c), (11). That may be so, but Ernst is 

specific here—we are to consider who appoints the entity at issue, and there is no debating that 

although a municipality might have some ability to avoid emergency management or to remove 

an emergency manager, Michigan’s governor appoints emergency managers. 

4.

Whether the entity’s functions fall within the traditional purview of state or local 

government weighs heavily against Flint. Under Public Act 436, an emergency manager takes 

the place of a local body; he, in other words, takes over the local government’s functions. And 

as the State of Michigan rightly phrases it, “[t]he City of Flint’s functions are ‘within the 

traditional purview of local government’ because the City of Flint is a local government.” 

Flint has no answer for this obvious point, and instead asks us to narrowly focus on the 

City’s provision of waterworks. It underwhelmingly strings this argument together: Because 

Michigan’s Safe Drinking Water Act provides the MDEQ with “power and control over public 

water supplies and suppliers of water” and criminalizes the failure to comply with MDEQ rules, 

see Mich. Comp. Laws §§ 325.1003, 325.1021, “the functioning of a waterworks falls within the 

purview of the State.” But even were we to ignore the fact that Public Act 436’s command to an 

emergency manager is to take over all of a municipality’s functions and not just its utilities, the 

answer is still the same given our discussion above. Flint even admits as much, telling us “the 

day-to-day operations of a waterworks generally fall within the purview of local authorities.” 

That MDEQ “exercises the state’s police powers, in an oversight capacity, by regulating the 

water quality” does not dictate a contrary conclusion, for “MDEQ does not own, operate or 

maintain the water delivery systems, . . . [n]or is it charged with providing water to the 

inhabitants of Michigan’s cities.” Collins, 2016 WL 8739164, at *4. Thus, we decline to 

effectively turn every local governmental body’s provision of service into an arm of the state 
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when that service is regulated by the state in some fashion. Cf. N. Ins. Co. of New York v. 

Chatham Cty., 547 U.S. 189, 194 (2006) (merely “exercis[ing] a slice of state power” does not 

transform a state’s subdivision into an arm of the state (internal quotation marks omitted)). 

B.

In sum, Flint has not met its burden to show that when under emergency management, it 

was an “arm of the state” protected by the Eleventh Amendment. The foremost consideration—

the state’s potential liability for judgment—counsels against a finding of Eleventh Amendment 

immunity, and the remaining factors do not “far outweigh” this factor. Pucci, 628 F.3d at 761. 

VIII.

For these reasons, we affirm the district court in part, and reverse in part.
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___________________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

___________________________________________________________

McKEAGUE, Circuit Judge, concurring in part and dissenting in part. 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. In retrospect, that information turned out to be 

grievously wrong. The result is what has become known as the Flint Water Crisis. The question 

this case presents is not whether the collective result of the officials’ actions—the Water Crisis—

caused any harm. It did. The question is, rather, whether any official’s discrete decisions or 

statements, which in any way caused or contributed to the Crisis, violated a substantive due 

process right to bodily integrity. By answering that question with, “obviously, yes,” the majority 

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. In doing so, the majority unfairly denies defendants protection from suit under 

the doctrine of qualified immunity. 

As in all cases dealing with the defense of qualified immunity, it is plaintiffs’ burden to 

establish, first, that the defendants violated a constitutional right and, second, that the right was 

clearly established at the time the challenged conduct took place. Ashcroft v. al-Kidd, 563 U.S. 

731, 735 (2011). I have serious doubts about whether plaintiffs carried their burden at the first 

prong of the analysis. I am certain they failed to carry their burden at the second. The majority 

reaches the opposite conclusion by building on a factual narrative of its own invention.

To place the qualified-immunity analysis on firmer footing, I begin with a recitation of 

the allegations as told by plaintiffs in their complaint. I then turn to qualified immunity’s two 

prongs. As to the first, I doubt that plaintiffs allege that any defendant deprived them of a 

Fourteenth Amendment substantive-due-process right—both because the conduct actually 

alleged in the complaint does not appear to be conscience-shocking and because the Due Process 
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Clause has never before been recognized as protecting against government conduct that in some 

way results in others being exposed to contaminated water. But even if plaintiffs have alleged 

the violation of a recognized due process right, their claim nonetheless fails at prong two of the 

qualified-immunity analysis, which asks whether the right was clearly established. 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. 

Accordingly, qualified immunity must shield each defendant from suit. 

Before moving to the analysis, I note several points of agreement with the majority 

opinion. First, I join the majority in rejecting the City of Flint’s argument that it is entitled to 

Eleventh Amendment immunity from plaintiffs’ suit because the State of Michigan’s takeover of 

the City of Flint, pursuant to Michigan’s “Emergency Manager” law, transformed the City into 

an arm of the state. Additionally, I agree that plaintiffs fail to state a Fourteenth Amendment 

claim against Michigan Department of Health and Human Services (MDHHS) employees Nick 

Lyon, Eden Wells, Nancy Peeler, and Robert Scott; and Michigan Department of Environmental 

Quality (MDEQ) director Daniel Wyant. That is where my agreement ends, however. 

I respectfully dissent from the denial of qualified immunity for Flint Emergency Managers 

Darnell Earley and Gerald Ambrose; Flint’s Director of Public Works Howard Croft; and MDEQ 

employees Liane Shekter-Smith, Stephen Busch, Michael Prysby, and Bradley Wurfel.

I

I begin with a review of the facts. Because this case comes before us on appeal from a 

motion to dismiss for failure to state a claim, I accept all factual allegations as true and construe 

them in the light most favorable to plaintiffs. Linkletter v. W. & S. Fin. Grp., Inc., 851 F.3d 632, 

637 (6th Cir. 2017).

The Flint Water Crisis began when the City of Flint, undergoing extreme financial 

distress, came under the leadership of a succession of “Emergency Managers”—temporary city 

managers appointed by the governor to “act for and in the place and stead of the governing body 

and the office of chief administrative officer of the local government.” M.C.L. § 141.1549(2). 

One of the City’s Emergency Managers was Edward Kurtz. In 2013, Kurtz made a critical fiscal 
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decision that set the City on a path toward the Flint Water Crisis. With the approval of the State 

of Michigan’s treasurer, Kurtz terminated a decades-long contract for water services from the 

Detroit Water and Sewerage Department (DWSD) and ordered Flint to join the newly-formed 

and more affordable Karegnondi Water Authority (KWA). The KWA was not yet functional, 

however. So Kurtz had to choose an interim source of Flint’s drinking water. He determined 

that the best temporary source, from a budgetary standpoint, was the Flint River, treated at the 

City’s own, and then-idle, water treatment plant. He notified the DWSD that Flint would soon 

cease receiving water from the DWSD. 

Before the switch was finalized, Darnell Earley took over as Emergency Manager, 

assuming the position in November 2013. The City officially switched to the Flint River in April 

2014. For decades prior, the Flint water treatment plant was designated for emergency use only. 

A 2011 “feasibility report” concluded that it would take extensive upgrades to bring it in 

compliance with “applicable standards” for use as a permanent water source. Plaintiffs allege 

that Earley “rushed” the switch to meet a “self-imposed” and “aggressive” deadline, without 

ensuring that Flint’s water treatment plant was ready to properly treat Flint River water, and that 

he did so for the purpose of cutting costs. But they also assert that, at some point before the 

April 2014 switch, Flint hired an engineering firm—Lockwood, Andrews, & Newman 

(Lockwood)—“to prepare Flint’s water treatment plant for the treatment of new water sources, 

including both the KWA and the Flint River.” Even though the Flint River water was highly 

corrosive, plaintiffs allege that Lockwood did not advise the City to set water quality standards 

or implement corrosion control at the water treatment plant prior to using the River as a drinking 

water source. 

Neither did the MDEQ—the state agency primarily responsible for ensuring compliance 

with federal and state safe drinking water laws. Relevant here, the MDEQ was tasked with 

ensuring Flint complied with the federal Lead and Copper Rule. That Rule generally requires 

public water systems to monitor and treat lead and copper levels in drinking water. 40 C.F.R § 

141.80, et seq. The MDEQ believed, erroneously as it turns out, that the Rule allowed Flint’s 

water treatment plant to begin distributing Flint River water and then conduct two rounds of sixmonth testing before determining what method of corrosion control to use to treat the water. So 
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in April 2014, the City began distributing the Flint River water to residents without first 

implementing corrosion control treatment. Around the time of the switch, the director of Flint’s 

Department of Public Works, Howard Croft, publicly announced that the City’s testing proved 

the water was safe and “of the high quality that Flint customers have come to expect.” 

Soon after the transition, however, problems emerged. Residents complained of oddly 

smelling and discolored water. In October 2014, General Motors stopped using the City water at 

its engine-manufacturing plant out of fear that high levels of chloride would cause corrosion. 

Then, after the City attempted to disinfect the water, it discovered trihalomethanes—a potentially 

toxic byproduct caused by attempting to disinfect the water. That discovery prompted the City to 

mail a notice to its customers explaining that the City was in violation of the Safe Drinking 

Water Act but that the water was safe to drink for most people with healthy immune systems. 

Additionally, plaintiffs say that “[a]s early as January of 2015, the State of Michigan provided 

purified water coolers at its Flint offices in response to concerns about the drinking water.” 

On January 9, 2015, the first apparent concerns of lead in Flint’s drinking water began to 

emerge. On that day, The University of Michigan-Flint discovered lead in campus drinking 

fountains. It is unclear from the complaint whether that discovery was publicized and thus 

whether any City or State official involved in testing or distributing Flint’s water knew about the 

discovery.

Also around January 2015, and largely in response to citizen complaints, Flint hired 

another engineering firm—Veolia North America, LLC (Veolia)—to review the City’s water 

quality. Veolia completed a “160-hour assessment of the treatment plant, distribution system, 

customer services and communication programs, and capital plans and annual budget.” The firm 

issued a final report in March, in which it concluded that Flint was in “compliance with State and 

Federal water quality regulations, and based on those standards, the water [was] considered to 

meet drinking water requirements.” Additionally, it stated that discolorations in the water 

“raise[d] questions” but that the water remained safe to drink. 
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Around that time, another Emergency Manger, Gerald Ambrose, took over the City’s 

operations. On January 12, 2015, the day before Ambrose assumed his Emergency Manager 

role, the DWSD offered to waive a 4-million-dollar reconnection fee if the City of Flint resumed 

using its services. Ambrose declined the offer. Then, in late March, Flint’s City Council voted 

7-1 to resume services with the DWSD. Ambrose rejected the vote, calling it 

“incomprehensible.” 

In the meantime, several MDEQ employees were having internal discussions about 

Flint’s water problems. Liane Shekter-Smith, MDEQ’s Chief of the Office of Drinking Water 

and Municipal Assistance, emailed other MDEQ employees to suggest that the Flint River water 

was “slough[ing] material off of pipes” in the distribution system rather than “depositing 

material or coating pipes[.]” She opined that “[t]his may continue for a while until things 

stabilize.” 

Soon, an EPA employee became involved in the discussion as well. Miguel Del Toral, 

the EPA’s regional drinking water regulations manager, reached out to the MDEQ on February 

27, 2015, to voice his concerns about the possibility of elevated lead levels. Del Toral informed 

Michael Prysby, an MDEQ engineer, that the MDEQ’s specific method for testing lead levels in 

Flint residents’ tap water may be producing test results that underestimated lead levels. He also 

asked whether the water treatment plant was using optimized corrosion control, which he noted 

was “required” to be in place. That same day, Stephen Busch, an MDEQ District Supervisor in 

Lansing, responded to Del Toral stating that the water treatment plant had an “optimized 

corrosion control program.” Two months later, an unidentified individual from the MDEQ 

informed the EPA that it had no optimized corrosion control treatment in place. 

In April 2015, Del Toral again reached out to the MDEQ, this time issuing a 

memorandum that expressed concern with the lack of corrosion control and Flint’s water testing 

methods. He also told MDEQ employees Busch and Prysby that he believed the MDEQ’s 

sampling procedures did not properly account for the presence of lead service lines. Therefore, 

Del Toral said he “worried that the whole town may have much higher lead levels than the 
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compliance results indicated[.]” According to plaintiffs, the MDEQ “ignored and dismissed” 

Del Toral’s concerns.

A few months later, plaintiffs say that Busch “claimed that ‘almost all’ homes in the pool 

sampled for lead in Flint had lead services lines,” even though this was untrue. Plaintiffs do not 

indicate to whom Busch made that statement. Later in July, a reporter broke a story announcing 

that Flint’s water was contaminated with lead, citing Del Toral’s April 2015 memorandum. In 

response, Bradley Wurfel, MDEQ’s Communications Director, publicly stated that “anyone who 

is concerned about lead in the drinking water in Flint can relax.”

That same month, the EPA and the MDEQ had a conference call to discuss MDEQ’s 

compliance with the Lead and Copper Rule. According to plaintiffs, the EPA pushed for Flint to 

use optimized corrosion control, but the MDEQ insisted that doing so was “unnecessary and 

premature.” In a follow-up email, MDEQ employee Shekter-Smith asked the EPA to provide a 

written concurrence that the City was in compliance with the Lead and Copper Rule.

Also in July, MDEQ employees exchanged a series of internal emails discussing how 

water tests performed by outside sources, which showed that Flint’s drinking water had 

impermissibly high lead levels, compared with the MDEQ’s own water testing results, which 

showed lower lead levels. When a report by a Virginia Tech professor revealing high lead levels 

surfaced in September 2015, Wurfel made public statements challenging the report and asserting 

that Flint’s drinking water remained in compliance with federal and state laws. During this time, 

other MDEQ employees maintained that Flint was not required to use corrosion control until 

unacceptably high levels of lead had already appeared in the water, which they believed was not 

yet the case. 

Later in September, Croft emailed “numerous officials” to report that the City of Flint 

had “officially returned to compliance with the Michigan Safe Drinking Water Act” and that it 

had “received confirming documentation from the [M]DEQ” to that effect. He explained that 

“[a]t the onset of our plant design, optimization for lead was addressed and discussed with the 

engineering firm and with the [M]DEQ. It was determined that having more data was advisable 

prior to the commitment of a specific optimization method. . . . We have performed over one 
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hundred and sixty lead tests throughout the city since switching over to the Flint River and 

remain within EPA standards.”1

The MDHHS also began to take a closer look at the outside studies showing high lead 

levels in Flint’s water. Though at least a few MDHHS employees became aware of an increase 

in blood lead levels in Flint’s children in July, the increase was attributed to “seasonal 

variation”—a summer phenomenon in which children’s blood lead levels naturally increase 

because of more frequent exposure to lead in soil and other seasonal factors. But in September, 

MDHHS employees began to take a closer look. They circulated a study conducted by a 

pediatrician at a Flint hospital, Dr. Mona Hanna-Attisha, which showed elevated blood lead 

levels in children. The next day, one MDHHS employee attempted to recreate the study but 

came up with different numbers. The City of Flint also issued a health advisory telling residents 

to flush pipes and install filters to prevent lead poisoning. On October 1, 2015, the MDHHS 

officially confirmed Dr. Hanna-Attisha’s results. 

Finally, on October 16, 2015, Flint reconnected to the DWSD. Two days later, MDEQ

Director Daniel Wyant admitted to Michigan’s governor that MDEQ “staff made a mistake while 

working with the City of Flint. Simply stated, staff employed a federal (corrosion control) 

treatment protocol they believed was appropriate, and it was not.” Several MDEQ employees 

subsequently resigned or were suspended without pay. On January 21, 2016, the EPA issued an 

Emergency Order identifying the primary cause of increased lead levels in Flint’s water as being 

a lack of corrosion control treatment after the City’s switch to the Flint River.

II

To make it past qualified immunity’s first prong, a plaintiff must plead facts showing that 

a government official violated a constitutional right. al-Kidd, 563 U.S. at 735. Plaintiffs assert 

that their claim falls under the fundamental right to bodily integrity, a right guaranteed by the 

substantive component of the Fourteenth Amendment’s Due Process Clause. Albright v. Oliver, 

 

1

It is unclear whether the “one hundred and sixty lead tests” were part of the “160-hour assessment” that 

Veolia conducted in early 2015 as part of its review of the City’s water treatment plant.
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510 U.S. 266, 272 (1994). We measure whether the deprivation of a right to bodily integrity—or 

any other substantive-due-process right—actually occurred by determining whether a 

defendant’s alleged conduct was so heinous and arbitrary that it can fairly be said to “shock the 

conscience.” Lillard v. Shelby Cty. Bd. of Educ., 76 F.3d 716, 725 (6th Cir. 1996). At times we 

have treated these two elements (deprivation of a constitutional right and conscience-shocking 

behavior) as separate methods of stating a substantive-due-process claim. Range v. Douglas, 

763 F.3d 573, 588 (6th Cir. 2014). At other times we have concluded they are both required. 

See Am. Express Travel Related Servs. Co., Inc. v. Kentucky, 641 F.3d 685, 688 (6th Cir. 2011). 

But whether these are two separate methods of establishing a substantive-due-process violation 

or are two required elements of doing so does not change the outcome in this case. Plaintiffs’ 

allegations show neither conscience-shocking conduct nor the violation of a fundamental right.

To demonstrate why, I turn back to the allegations in plaintiffs’ complaint. The 

complaint is particularly important here, because substantive due process is an undefined area 

where “guideposts for responsible decisionmaking . . . are scarce and open-ended” and “judicial 

self-restraint requires us to exercise the utmost care whenever we are asked to break new ground 

in this field.” Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992). We must, therefore, 

“focus on the allegations in the complaint to determine how [plaintiffs’] describe[] the 

constitutional right at stake and what [defendants] allegedly did to deprive [plaintiffs] of that 

right.” Id. The majority pays lip service to that command but abandons it in the analysis. 

Although the majority describes the bodily integrity right at stake as the right to be free from a 

government official “knowingly and intentionally introducing life-threatening substances into 

individuals without their consent,” the right plaintiffs allege was violated is altogether different. 

Plaintiffs’ complaint specifically states: “In providing Plaintiffs with contaminated water, 

and/or causing Plaintiffs to consume that water, Defendants violated Plaintiffs’ right to bodily 

integrity, insofar as Defendants failed to protect Plaintiffs from a foreseeable risk of harm from 

the exposure to lead contaminated water.” That claim makes clear where defendants allegedly 

went wrong. It was not in knowingly introducing life-threatening substances into plaintiffs’ 

bodies against their will; it was in allegedly “fail[ing] to protect plaintiffs from a foreseeable risk 

of harm from the exposure to lead contaminated water” (emphasis added).
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And that claim, as framed by plaintiffs, immediately encounters two roadblocks to 

establishing a due process violation: (1) a policymaker’s or regulator’s unwise decisions and 

statements or failures to protect the public are typically not considered conscience-shocking 

conduct, and (2) the Due Process Clause does not generally guarantee a bodily integrity right 

against exposure to contaminated water or other types of environmental harms. These two 

roadblocks raise serious doubts about whether plaintiffs meet the first prong of the qualified 

immunity analysis. I review each of these problems with plaintiffs’ claim in turn, starting first 

with whether defendants’ alleged conduct rises to the conscience-shocking level.

A

The first roadblock to plaintiffs’ due process claim is that the conduct alleged fails to 

meet the “high” conscience-shocking standard. Range, 763 F.3d at 589. Plaintiffs’ “failure to 

protect from foreseeable harm” theory sounds in classic negligence. But negligence—even gross 

negligence—does not implicate the Due Process Clause’s protections. Daniels v. Williams, 

474 U.S. 327, 331–33 (1986). “The Due Process Clause ‘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[.]’” Collins, 503 U.S. at 128 (citation omitted). Rather, it serves to limit the 

government from using its power as an “instrument of oppression.” DeShaney v. Winnebago 

Cty. Dep’t. of Soc. Servs., 489 U.S. 189, 195 (1989) (citation omitted). Accordingly, substantive 

due process is implicated only by government actions (and sometimes failures to act) that are “so 

inspired by malice or sadism rather than a merely careless or unwise excess of zeal that [they] 

amount[] to a brutal and inhumane abuse of official power literally shocking to the conscience.” 

Lillard, 76 F.3d at 725 (citation omitted). Normally, meeting that standard requires plaintiffs to 

show an intent to injure through some affirmative act, but, depending on the context, even a 

deliberately indifferent failure to act may constitute conscience-shocking behavior. Cty. of 

Sacramento v. Lewis, 523 U.S. 833, 846 (1998). In the context of a non-custodial case such as 

this one, to show conscience-shocking behavior based on deliberate indifference, a plaintiff must 

show something akin to “callous disregard or intent to injure. Schroder v. City of Fort Thomas, 

412 F.3d 724, 730 (6th Cir. 2005) (citing Lewis, 523 U.S. at 846); see also Hunt v. Sycamore 

Cmty. Sch. Dist. Bd. of Educ., 542 F.3d 529, 538 (6th Cir. 2008) (“[I]n order to succeed on a 
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§ 1983 claim in a non-custodial setting, a plaintiff must prove either intentional injury or 

‘arbitrary conduct intentionally designed to punish someone[.]’” (citation and emphasis 

omitted)).

In all cases, we are required to perform an “exact analysis of the circumstances before” 

condemning “any abuse of power . . . as conscience shocking.” Lewis, 523 U.S. 850. The 

majority eschews that requirement. Instead of reviewing the defendant-specific allegations in 

context, it cherry-picks a few “examples” from plaintiffs’ complaint and strings them together to 

form a narrative not told by plaintiffs. In compounding that error, the majority draws 

inconsistent, even contradictory, conclusions about the level of culpability the allegations entail. 

In one breath, the majority says plaintiffs plausibly allege that defendants “knowingly and 

intentionally introduc[ed] life-threatening substances into individuals without their consent.” 

But in another breath, it says “[t]here is no allegation defendants intended to harm Flint 

residents.” In yet another, the majority says defendants “systematically contaminate[d]” the Flint 

community. I will leave it to the reader to reconcile how conduct may constitute a knowing, 

intentional, and systematic attempt to contaminate another without also being motivated by an 

intent to harm that person. I, for one, fail to follow that logic. It is only by this imprecise 

analysis that the majority concludes these defendants acted in a conscience-shocking manner. 

A more exact, defendant-specific analysis shows otherwise. The following analysis 

reveals that plaintiffs do not allege the additional “callous disregard or intent to injure” element 

that applies to non-custodial deliberate-indifference claims. I review the allegations against 

Flint’s Emergency Managers (Darnell Earley and Gerald Ambrose),2 Flint’s Department of 

Public Works Director (Howard Croft), and the MDEQ employees (Liane Shekter-Smith, 

Stephen Busch, Michael Prysby, and Bradley Wurfel) in turn. Additionally, I explain why I 

agree with the majority that the case against the MDHHS executives and employees (Nick Lyon, 

Eden Wells, Nancy Peeler, and Robert Scott) and the MDEQ Director (Daniel Wyant) must be 

dismissed. 

 

2Plaintiffs also bring a claim against the City of Flint, which necessarily rises and falls with their claim 

against the Emergency Managers. Because the Emergency Managers were acting on behalf of the City, their policy 

decisions concerning the source of the City’s water were also policy decisions of the City. Accordingly, plaintiffs’ 

claim implicates the City only to the extent the Emergency Managers’ decisions were unconstitutional. 
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1

Flint Emergency Managers Darnell Earley and Gerald Ambrose. First, consider 

plaintiffs’ allegations against Emergency Managers Earley and Ambrose. According to 

plaintiffs, Earley “rushed” the switch to the Flint River to meet a “self-imposed” and 

“aggressive” deadline as a cost-saving measure without ensuring the water treatment plant was 

adequately equipped to treat the water. Ambrose later rejected opportunities to return to the 

DWSD despite residents’ complaints and other evidence pointing to the water’s high corrosivity. 

The majority concludes that both Emergency Managers approved the initial and ongoing use of 

the Flint River as a water source despite knowing the City’s water treatment plant was not 

equipped to treat the water. Not so.

Consider the Emergency Managers’ decisions in context, starting with the initial switch 

under Earley’s leadership. Recall that before the switch, the City consulted with the Lockwood 

engineering firm to ready its treatment plant. The engineering firm did not advise the City to 

implement corrosion control. Neither did the MDEQ. In fact, the MDEQ informed the City that 

it was “satisfied with the water treatment plant’s ability to treat water from the Flint River.” And 

although the MDEQ noted that the KWA was “a higher quality source [of] water” than the Flint 

River, it never indicated that use of the Flint River would place residents at risk of lead 

contamination. Fast-forward to early 2015, when Ambrose rejected two opportunities to 

reconnect to the DWSD. At that time, the City had hired the Veolia engineering firm to review 

its water quality and treatment procedures. After a 160-hour assessment, Veolia concluded that 

Flint’s water complied with applicable laws and did not advise Flint to use corrosion control. 

The Emergency Managers’ reliance on expert advice does not demonstrate a callous 

disregard for or intent to injure plaintiffs. Earley and Ambrose were budget specialists, not water 

treatment experts. They did not oversee the day-to-day operations of the water treatment plant, 

nor did they carry any responsibility for ensuring its compliance with federal or state laws. 

Accordingly, their reliance on the industry and regulatory experts who were tasked with 

preparing the water treatment and ensuring its compliance with safe drinking water laws does not 

demonstrate conscience-shocking behavior.
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The majority, with the luxury of hindsight, believes that whether Earley or Ambrose 

reasonably relied on the opinions of the MDEQ or professional engineering firms is better left 

for summary judgment. But that belief suggests that the Due Process Clause may obligate 

managers of a municipal budget or other government officials to reject the advice of industry and 

regulatory experts based on the risk that those experts are wrong. Such a conclusion cuts against 

the “presumption that the administration of government programs is based on a rational 

decisionmaking process that takes account of competing social, political, and economic forces.” 

Collins, 503 U.S. at 128. Indeed, “[i]t is in the very nature of deliberative bodies to choose 

between and among competing policy options, and yet a substantive due process violation does 

not arise whenever the government’s choice prompts a known risk to come to pass.” Schroder, 

412 F.3d at 729. Yet under the majority’s conscience-shocking analysis, a whole host of policy 

decisions would now be subject to constitutional review, in direct contravention of the 

presumption of rational regulatory decisionmaking. See, e.g., White v. Lemacks, 183 F.3d 1253, 

1258 (11th Cir. 1999) (“[W]hen governmental action or inaction reflects policy decisions about 

resource allocation (as is often the case), those decisions are better made ‘by locally elected 

representatives, rather than by federal judges interpreting the basic charter of Government for the 

entire country.’” (quoting Collins, 503 U.S. at 129)). 

Finally, the majority asserts that concluding that Ambrose and Earley were relying on 

experts places an inappropriately “benign construction on the factual allegations.” Yet the 

majority cites no factual allegations supporting any other conclusion. Instead, it accepts 

plaintiffs’ various “labels and conclusions”—for instance, that Ambrose and Earley “knew” 

about risks to Flint residents—as sufficient support for their claim. This cuts against the 

Supreme Court’s directive that plaintiffs allege facts, not conclusions, to state entitlement to 

relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The bottom line is that 

plaintiffs do not allege that any industry or regulatory expert informed Earley or Ambrose that 

the City’s water treatment plant was not equipped to treat Flint River water or that the water was 

not being treated with corrosion control. In fact, plaintiffs allege just the opposite. Professional 

engineering firms and the MDEQ repeatedly affirmed that Flint’s drinking water complied with 

applicable law. Accordingly, the Emergency Managers’ approval of the plant’s initial and 
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ongoing use of the Flint River as a water source does not plausibly demonstrate callous disregard 

for or an intent to injure plaintiffs, let alone any effort to “systematically contaminate” the Flint 

community.

2

MDEQ employees Liane Shekter-Smith, Stephen Busch, Michael Prysby, and Bradley 

Wurfel. Next consider the claims against the various MDEQ employees. Plaintiffs contend that 

every MDEQ employee misinterpreted the Lead and Copper Rule. Under the MDEQ’s 

erroneous interpretation of the Rule, the City could begin distributing Flint River water to 

residents and then conduct two six-month rounds of lead testing before treating the water with 

corrosion control. Without immediate treatment, the water accumulated lead as it flowed 

through the City’s pipes. And over time, plaintiffs’ drinking water became contaminated with 

allegedly unhealthy levels of lead. Plaintiffs equate the MDEQ’s misinterpretation of the Lead 

and Copper Rule’s corrosion-control requirements with conscience-shocking behavior that 

caused plaintiffs’ exposure to lead.

As gravely erroneous as the MDEQ’s interpretation of the Rule appears in hindsight, 

however, there is no legal support for the conclusion that it amounted to conscience-shocking 

conduct. On the contrary, a mistake of law is the classic type of conduct that qualified immunity 

protects from suit. Pearson v. Callahan, 555 U.S. 223, 231 (2009) (“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.’” (citation omitted)); 

Gavitt v. Born, 835 F.3d 623, 640–41 (6th Cir. 2016). That should end the case against these 

defendants.

The majority concludes, however, that the MDEQ’s misinterpretation may have been 

intentional. According to the majority, plaintiffs’ allegations present the “bleak[]” possibility 

that the MDEQ may have used Flint residents as “guinea pigs” to test lead-compliance theories 

unsupported by the law. None of plaintiffs’ factual allegations make that inference a reasonable 

one. This is not a conspiracy case. Plaintiffs do not assert that the MDEQ employees 

maliciously agreed to a certain incorrect interpretation of the Lead and Copper Rule to exempt 
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Flint from using corrosion control. And it is implausible that each MDEQ employee individually

set out to advance the same incorrect interpretation of the Rule just to save the City money. 

Indeed, plaintiffs do not allege that any MDEQ employee intentionally misled Flint about the 

Rule’s requirements. Instead, plaintiffs’ allege that the MDEQ provided misguided advice 

rooted in mistaken interpretations of law—the type of conduct that, though it led to extremely 

unfortunate consequences here, is classically entitled to protection from suit under the doctrine of 

qualified immunity.

Still, the majority takes plaintiffs’ allegations a step further, making the sweeping 

assertion that the MDEQ employees “created” the Flint Water Crisis by knowingly approving 

distribution of Flint River water with the use of an ill-prepared water treatment plant and then 

deceiving the public about the consequences of that decision. The allegations do not support that 

theory, however.

First, 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. Rather, 

plaintiffs say that the decision was made by Kurtz, Flint’s 2013 Emergency Manager, with 

approval from the State’s treasurer. Moreover, plaintiffs fail to allege that any of these MDEQ 

employees knew that the Flint water treatment plant was incapable of treating Flint River water. 

To be sure, plaintiffs allege that “all Defendants” were aware of a 2011 “feasibility report” 

rejecting the use of the Flint River at the time because of costs associated with bringing the 

treatment plant in compliance with “applicable standards.” But plaintiffs provide no further 

context surrounding the report’s creation and who knew about its contents. On the other hand, 

plaintiffs allege that, prior to the switch, Flint’s Utilities Administrator told Prysby and Busch 

that the water treatment plant had “developed a system of redundant electrical systems, treatment 

processes and adequate finished water storage” after consulting with the MDEQ and an 

engineering firm. And after that, Busch informed Wurfel that the MDEQ was “satisfied with the 

City’s ability to treat water from the Flint River[.]” These allegations thus do not suggest that 

any MDEQ employee knew the treatment plant was actually incapable of properly treating Flint 

River water and approved its use anyway.
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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. 

Prysby. Take Prysby, an MDEQ engineer, first. The majority latches on to a single 

email sent from Prysby to a couple other MDEQ employees in October 2014. In it, Prysby 

opines that the fact that a General Motors engine-manufacturing plant stopped using Flint River 

water because of its corrosive nature did not mean that the water should be labeled “‘corrosive’ 

from a public health standpoint.” According to the majority, that statement shows that Prysby 

was more interested in spinning the water’s corrosive nature as unconnected to public health 

instead of investigating problems with the water. But a “[n]egligent failure to investigate . . . 

does not violate due process.” Wilson v. Lawrence Cty., 260 F.3d 946, 955 (8th Cir. 2001) 

(citations omitted). And 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 him. Plaintiffs thus do not plausibly 

allege that Prysby created the Flint Water Crisis and then deceived the public about it. 

Busch. Nor do the allegations support such a finding when it comes to Busch. The 

complaint references a number of Busch-authored emails, but the majority references only two 

internal emails exchanged between MDEQ employees and between Busch and EPA employee 

Del Toral. The majority concludes that Busch lied in the latter email, when he informed Del 

Toral in February 2015 that Flint’s water treatment plant “had an optimized corrosion control 

program” in place, which demonstrates conscience-shocking behavior. But the complaint 

contains no factual allegations supporting the conclusion that Busch’s statement was a lie. Flint 

did have a corrosion control “program” in place—a program that permitted a two-round testing 

period after the plant became operational and before plant administrators chose a particular 

method of corrosion control treatment. The MDEQ believed the Lead and Copper Rule allowed 

for that type of program. Even though the MDEQ was wrong, that error does not support the 

allegation that Busch lied to the EPA about the existence of a corrosion control program. 

Moreover, plaintiffs do not allege that Busch personally knew that Flint was distributing water 

without corrosion control treatment until April 2015. So even if Busch meant “treatment” when 
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he said “program” in the February email, the factual allegations do not support the conclusion 

that he knew the statement was false. In sum, 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. 

Shekter-Smith. The allegations likewise fail to demonstrate that Shekter-Smith acted in a 

conscience-shocking manner. The majority focuses on two of Shekter-Smith’s emails. 

In the first, Shekter-Smith requested that an EPA official indicate his agreement “that the 

city [was] in compliance with the lead and copper rule.” That, she explained, would help the 

MDEQ “distinguish between [its] goals to address important public health issues separately from 

the compliance requirements of the actual rule[.]” The majority’s take on that email is that 

Shekter-Smith cared more about “technical compliance” with the Lead and Copper than 

addressing an urgent health crisis. Whatever weight Shekter-Smith actually assigned each of 

those concerns, all that her email exhibits is an attempt to address them separately. This is 

hardly conscience-shocking conduct.

In the second email, Shekter-Smith responded to a question from Jon Allan, Director of 

the Michigan Office of the Great Lakes, about the MDEQ’s statewide goals related to healthbased standards. Under those goals, “98 percent of population [sic] served by community water 

systems” and “90 percent of the non-community water systems” would be providing “drinking 

water that meets all health-based standards” by 2020. Allan asked why MDEQ had any goal less 

than “100 percent,” saying, “How many Flints Do you intend to allow???” Shekter-Smith 

replied:

The balance here is between what is realistic and what is ideal. Of course, 

everyone wants 100 percent compliance. The reality, however is that it’s 

impossible. It’s not that we ‘allow’ a Flint to occur; circumstances happen. 

Water mains break, systems lose pressure, bacteria gets into the system, 

regulations change and systems that were in compliance no longer are, etc. Do 

we want to put goal [sic] in black and white that cannot be met but sounds good? 
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Or do we want to establish a goal that challenges us but can actually be 

accomplished? Perhaps there’s a middle ground?

This second email likewise shows nothing more than Shekter-Smith’s concern with 

meeting agency goals—in this instance, goals related to the statewide administration of safe 

drinking water. The propriety of certain agency goals, however, falls outside the purview of the 

Due Process Clause. Indeed, we presume that agency goal-setting consistent with its regulatory 

duties takes into account “competing social, political, and economic forces” of which judges do 

not have full view. Collins, 503 U.S. at 128. In this instance, Shekter-Smith was apparently 

seeking to establish a goal that could “actually be accomplished.” That concern is not 

conscience-shocking, regardless of how it sounds in view of what happened in Flint. These two 

emails, in short, do not demonstrate that Shekter-Smith created the Flint Water Crisis and 

subsequently attempted to deceive the public. 

Wurfel. Of all the MDEQ employees, the majority’s intentional-public-deception theory 

really implicates only one individual: Wurfel, the Department’s Director of Communications. 

He is the only MDEQ employee alleged to have made public statements about Flint’s drinking 

water. The majority characterizes Wurfel’s statements as attempts to demean, belittle, and 

aggressively dampen challenges to the government’s assertion that Flint’s drinking water was 

safe. But however his statements may be characterized, they were not conscience-shocking.

His first statement came in July 2015, after a reporter broke a story claiming that there 

was lead in Flint’s drinking water. Wurfel publicly responded by saying that “anyone who is 

concerned about lead in the drinking water in Flint can relax.” Then, in September 2015, after 

two doctors released separate reports about studies showing unsafe levels of lead in Flint 

residents’ water, Wurfel placed the blame for the lead on the service lines in residents’ homes 

even though there was, according to plaintiffs, evidence that at least some residents’ service lines 

were plastic. Wurfel later called the doctors’ testing results “perplex[ing],” explaining that they 

did not match the City’s testing results, which he asserted were “done according to state and 

federal sampling guidelines and analyzed by certified labs.” On two other occasions in 

September, Wurfel asserted the doctors’ studies were inaccurate. 
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Though plaintiffs assert Wurfel’s statements were knowing lies, their factual allegations 

do not support that conclusion. See Twombly, 550 U.S. at 555. 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 with the requirements of the Lead and Copper Rule. The 

allegations do not show that Wurfel was given contrary information by any City or State official. 

Accordingly, plaintiffs do not demonstrate that Wurfel intentionally attempted to deceive the 

public about the safety of Flint’s drinking water or the City’s compliance with drinking water 

laws. At most, they show a mistake of law or fact, made at least in partial reliance on the 

representations of other State employees. It is certainly unfortunate that Wurfel announced those 

mistaken beliefs to the public. But that he did so does not strip him of the protection of qualified 

immunity. Pearson, 555 U.S. at 231. 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.

The allegations against the MDEQ employees, in sum, do not plausibly demonstrate a 

callous disregard for or intent to injure plaintiffs, let alone any effort to “systematically 

contaminate” the Flint community. 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.3

 

3Rather than viewing plaintiffs’ allegations in a light most favorable to defendants, all this conclusion does 

is hold plaintiffs to their burden of presenting factual allegations that provide a plausible basis for their claim. 

Twombly, 550 U.S. at 555. Plaintiffs do not provide any factual allegations supporting the conclusion that the 

MDEQ’s interpretations were more than mistakes. According to the majority, plaintiffs allege that Shekter-Smith, 

Busch, and Prysby knew Flint was not in compliance with applicable law because EPA employee Del Toral made 

that clear in a memorandum that these defendants “ignored and dismissed.” But while that memorandum allegedly 

expressed “concern[]” with Flint’s lack of corrosion control and water testing methods, it did not conclude that Flint 

was in violation of the Lead and Copper Rule. Plaintiffs do not allege that Del Toral or any other EPA official 

informed the MDEQ that Flint was flouting federal drinking water requirements.
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3

Flint Director of Department of Public Works, Howard Croft. Next, I turn to the 

allegations against Croft, which come nowhere near the high conscience-shocking standard. 

Plaintiffs assert that Croft “caused and allowed unsafe water to be delivered to Flint’s residents,” 

but they fail to allege that Croft was actually involved in the City’s decision to use to the Flint 

River as a water source or that he played any part in determining whether and when the treatment 

plant would use corrosion control. The majority finds that single, conclusory allegation 

sufficient to make the plausible inference that Croft played an affirmative role in approving the 

transition to the Flint River. What makes that conclusion especially confounding is the 

majority’s simultaneous rejection of allegations against other defendants that are just as 

conclusory as this one. For example, the majority finds that plaintiffs’ allegation that MDHHS 

executive Nick 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” as the 

kind of “bare” and “chimerical” assertions Iqbal mandates be set aside. But the allegation that 

Croft “caused and allowed unsafe water to be delivered to Flint’s residents” is not any more 

detailed than the “chimerical” assertion against Lyon. There are only two other allegations 

against Croft. The first is that, at an unidentified point in time, he said in a press release that the 

City’s water was “of the high quality that Flint customers have come to expect.” The second is 

that in September 2015, he emailed “numerous officials” to inform them that the MDEQ had 

confirmed Flint’s compliance with “EPA standards.” These allegations do not demonstrate that 

Croft engaged in any behavior that may fairly be construed as conscience-shocking. 

4

MDHHS executives Nick Lyon and Eden Wells; MDHHS employees Nancy Peeler and 

Robert Scott; and MDEQ Director Daniel Wyant. Finally, a brief word about the MDHHS 

executives, the MDHHS employees, and MDEQ Director Wyant, all of whom the majority 

correctly dismisses from this case. I agree with the majority that most of the allegations against 

the MDHHS executives and employees have to do with negligence (i.e., failing to timely notify 

the public of the possibility of increased lead in the water) rather than any affirmative action 
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involving them in the decision to use the Flint River as a water source without simultaneously 

implementing corrosion control treatment. I agree as well that once those allegations are 

discarded, plaintiffs’ remaining allegations—going to these defendants’ attempts to “discredit” 

studies from outside sources—are too sparse to demonstrate conduct rising to the level of 

conscience-shocking. 

And as to MDEQ Director Wyant, I concur with the majority’s conclusion that none of 

plaintiffs’ allegations show that he was personally involved with the decision to use the Flint 

River as a water source or otherwise engaged in any conscience-shocking behavior. 

Accordingly, I join the majority in concluding that plaintiffs’ allegations against these 

defendants engaged in conscience-shocking behavior or otherwise infringed on plaintiffs’ due 

process rights.

For all of these reasons, I do not believe plaintiffs’ allegations suggest that any individual 

defendant’s actions or failures to act shock the conscience. This presents a significant roadblock 

that seems to prevent plaintiffs from establishing a violation of substantive due process and thus 

proceeding past the first prong of the qualified-immunity analysis.

B

The second roadblock to plaintiffs’ substantive-due-process claim—which also suggests 

they cannot proceed past qualified immunity’s first prong—is that their claim does not appear to 

arise from the deprivation of a recognized fundamental right to bodily integrity. As should be 

clear by now, the right reconstructed by the majority is entirely distinct from the one asserted in 

plaintiffs’ complaint and is thus, unsurprisingly, devoid of support from plaintiffs’ factual 

allegations. 

So what is the bodily integrity right plaintiffs allege? According to the complaint, 

defendants’ alleged conduct amounted to a failure to protect from exposure to lead-contaminated 

water. But although plaintiffs frame the claim that way in their complaint, they insist their claim 

does not flow from a right to receive clean water. Plaintiffs are right to avoid advancing that 

theory because the Due Process Clause guarantees neither a right to live in a contaminant-free 
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environment, Collins, 503 U.S. at 125–26, nor a 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)). Still, it is hard to understand plaintiffs’ claim independent from the right to 

receive clean water. If the Constitution does not guarantee the right to receive clean water on the 

one hand, how may it guarantee the right not to be exposed to contaminated water on the other?

The majority avoids grappling with that issue by turning, inappropriately, to abstract 

concepts of personal autonomy and informed consent that it divines from several inapposite 

cases. In so doing, the majority’s analysis runs contrary to the “restrained methodology” 

outlined by the Supreme Court in Washington v. Glucksberg, 521 U.S. 702, 721 (1997). To 

apply that methodology, we look to “concrete examples involving fundamental rights found to be 

deeply rooted in our legal tradition.” Id. at 722. Those examples reveal the “outlines of the 

‘liberty’ [interests] specially protected by the Fourteenth Amendment[.]” Id. Because the Due 

Process Clause’s substantive component protects only those rights that are an integral part of our 

“Nation’s history and tradition,” courts “have always been reluctant to expand” the Clause’s 

coverage into new territory. Id. at 720–21. Looking to concrete examples regarding what those 

historic rights are “tends to rein in the subjective elements that are necessarily present in dueprocess judicial review.” Id. at 720, 722. 

In Glucksberg, the Court showed us how to use that “restrained methodology.” There, 

the Supreme Court dismissed a claim by state physicians that the Due Process Clause guaranteed 

a right to physician-assisted suicide. Id. at 721–24. The physicians argued that recognizing such 

a right would be consistent with the “self-sovereignty” principles underlying a person’s interest 

in choosing between life and death, which were articulated in Cruzan v. Missouri Department of 

Health, 497 U.S. 261 (1990). Id. at 723–24. In rejecting that argument, the Glucksberg Court 

clarified that Cruzan assumed, though did not definitively decide, that a competent person had a 

right to refuse unwanted lifesaving medical treatment. Id. at 720. That assumption, however, 

“was not simply deduced from abstract concepts of personal autonomy.” Id. at 725. It instead 

arose from the “common-law rule that forced medication was a battery, and the long legal 

tradition protecting the decision to refuse unwanted medical treatment[.]” Id. The specific right 

to physician-assisted suicide found no support in the examples outlined in the Court’s 
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jurisprudence or in our Nation’s history or traditions and was therefore not protected by 

substantive due process. Id. at 723–24. 

Likewise, 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. 

We have previously interpreted the bodily integrity right as “the right against forcible 

physical intrusions of the body by the government.” Planned Parenthood Sw. Ohio Region v. 

DeWine, 696 F.3d 490, 506 (6th Cir. 2012) (citations omitted). The right is outlined most 

explicitly in Rochin v. California, 342 U.S. 165 (1952). There, the Court held that the Due 

Process Clause prohibits a state from securing evidence in support of a conviction by using a 

vomit-inducing solution to forcibly extract the evidence from a suspect’s stomach. Id. at 172–

74. That intrusion on an individual’s body, the Court explained, was “too close to the rack and 

the screw” to be constitutionally permissible. Id. at 172. Since then, the Court has concluded 

that similar types of physically intrusive law enforcement searches implicate the right to bodily 

integrity. Those include a “compelled physical intrusion beneath [a suspect’s] skin and into [the] 

veins to obtain a” blood sample, Missouri v. McNeely, 569 U.S. 141, 148 (2013), and a 

nonconsensual surgery to retrieve a bullet from a suspect’s chest. Winston v. Lee, 470 U.S. 753, 

767 (1985). In this Circuit, we have concluded that obtaining evidence by “anally prob[ing]” an 

individual “without his consent” when he was “naked and handcuffed, . . . paralyzed, [and]

intubated” was such a grave bodily integrity violation that it rendered the Fourth Amendment 

search unreasonable. United States v. Booker, 728 F.3d 535, 537, 547 (6th Cir. 2013) (citation 

omitted). 

In the medical context, too, the Court has underscored the right’s guarantee against direct, 

physical intrusions into an individual’s body at the hands of a government official. In 

Washington v. Harper, for instance, the Court emphasized the significance of an inmate’s 

“liberty interest in avoiding the unwanted administration of antipsychotic drugs.” 494 U.S. 210, 

221, 223 (1990). Riggins v. Nevada, 504 U.S. 127, 135 (1992) affirmed the magnitude of that 
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liberty interest—avoiding the unwanted administration of drugs—for pretrial detainees as well. 

Later, in Cruzan, the Court explained that the general principles underlying Harper and Riggins 

suggested that “a competent person [has] a constitutionally protected right to refuse lifesaving 

hydration and nutrition.” 497 U.S. at 280; Glucksberg, 521 U.S. at 720 (explaining that Cruzan

“assumed, and strongly suggested, that the Due Process Clause protects” such a right without 

expressly concluding that it did (citing Cruzan, 497 U.S. at 278–79)). In the same vein, cases 

from the Supreme Court and our Circuit suggest that the right to bodily integrity is implicated by 

government interference with a woman’s right to obtain an abortion. See id. at 726–27; Planned 

Parenthood Sw. Ohio Region, 696 F.3d at 507.

These 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 lead-contaminated water allegedly caused by 

policy or regulatory decisions or statements.4 Even the few district court or sister circuit cases 

cited by the majority do not clarify the contours of plaintiffs’ alleged right. All except one of 

those cases deal with medical professionals performing government-sponsored invasive 

procedures or harmful experiments on unsuspecting patients.5 The last one deals with police 

 

4Even In re Cincinnati Radiation Litigation, 874 F. Supp. 796 (S.D. Ohio 1995), the one district court case 

the majority finds “especially analogous,” fails to close the gap. There, the court concluded that government 

officials violated medical patients’ right to bodily integrity by devising a program that subjected unwitting cancer 

patients to high doses of radiation under the guise of performing cancer treatment. Id. at 803–04. But whether the 

Due Process Clause protects hospital patients from being intentionally subjected to harmful medical treatment 

without their consent is not the determinative issue here. What we should care about is whether and when it 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. 

5Barrett v. United States, 798 F.2d 565 (2d Cir. 1986) (state psychiatric hospital administered injections of 

a synthetic mescaline compound furnished by the Unites States as part of an experimental program that tested the 

suitability of the substance as a chemical warfare agent); Lojuk v. Quandt, 706 F.2d 1456 (7th Cir. 1983) (Veterans 

Affairs psychiatrist subjected patient to electroconvulsive therapy without the patient’s consent); Rogers v. Okin, 

634 F.2d 650 (1st Cir. 1980), overruled on other grounds sub nom, Miss v. Rogers, 457 U.S. 291 (1982) (state 

administered antipsychotic drugs to both voluntary and involuntary patients at state mental health facilities);

Heinrich v. Sweet, 62 F. Supp. 2d 282 (D. Mass. 1999) (U.S. Government conspired with health institutions to 

conduct “extensive, unproven and dangerous medical experiments on over 140 terminally ill patients, without their 

knowledge or consent”); Stadt v. Univ. of Rochester, 921 F. Supp. 1023 (W.D.N.Y. 1996) (government physicians 

injected patient with plutonium without her knowledge or consent); In re Cincinnati Radiation Litigation, 874 F. 

Supp. 796 (S.D. Ohio 1995) (government and university physicians subjected cancer patients to radiation 

experiments without their knowledge under the guise that they were receiving cancer treatment); Davis v. Hubbard, 

506 F. Supp. 915 (N.D. Ohio 1980) (inadequate medical treatment).
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officers who coerced individuals to ingest marijuana while those individuals were under the 

officer’s control.6 So those cases further elaborate the ways in which medical or law 

enforcement personnel may interfere with an individual’s right to bodily integrity. But they say 

nothing about how non-custodial policy or regulatory decisions or statements affecting the 

quality of an environmental resource may do so. In short, neither our Nation’s history and 

traditions nor governing bodily integrity jurisprudence suggests that the conduct alleged here is 

comparable to a “forcible physical intrusion[] of the body by the government.” Planned 

Parenthood Sw. Ohio Region, 696 F.3d at 506. “The mere novelty of such a claim is reason 

enough to doubt that ‘substantive due process’ sustains it.” Reno v. Flores, 507 U.S. 292, 303 

(1993). 

In sum, because the conduct alleged does not appear to rise to the level of conscienceshocking, and because I believe it does not demonstrate the deprivation of a recognized 

fundamental right, I have serious doubts about whether plaintiffs state a substantive due process 

claim sufficient to carry them past prong one of the qualified-immunity analysis. 

III

The second prong of the qualified-immunity analysis looks to whether the alleged 

constitutional right was “clearly established” at the time the government official acted. al-Kidd, 

563 U.S. at 735. This presents the most fundamental problem for plaintiffs’ case. To the extent 

plaintiffs do successfully allege the violation of a constitutional right, the novelty of that right 

just shows that it was not clearly established at the time the alleged events unfolded. Therefore, 

the doctrine of qualified immunity shields every defendant from suit.

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) (emphasis added) (quoting Reichle v. Howards, 566 U.S. 

658, 664 (2012)). Because “[t]he dispositive question is whether the violative nature of 

particular conduct is clearly established,” we look to how existing precedent applies to each 

 

6Bounds v. Hanneman, 2014 WL 1303715 (D. Minn. Mar. 31, 2014) (officers forced plaintiffs to ingest a 

substantial amount of marijuana, against their will, in order to observe how they would react).
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defendant’s actions in the “specific context of the case” before us. Id. at 308 (internal quotation

marks and citation omitted). Plaintiffs must be able to “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.” Arrington-Bey v. City of Bedford Heights, 858 F.3d 988, 993 (6th Cir. 2017) 

(quoting White v. Pauly, 137 S. Ct. 548, 552 (2017)). Identifying a factually similar case is 

especially important in the realm of substantive due process, where the inherent ambiguity of 

what the law protects is best discerned through “carefully refined . . . concrete examples[.]” 

Glucksberg, 521 U.S. at 722.

Here, that means plaintiffs must be able to point to controlling cases extending 

substantive due process protections to the following individuals:

• A high-level government executive who makes a decision (or proceeds with a 

project) while relying on expert opinions that the decision or project is lawful and 

safe (Earley and Ambrose).

• A regulator who misinterprets environmental laws and provides bad advice to 

government policymakers (MDEQ employees).

• A city or state regulator who, based on the erroneous advice of other regulators, 

publicly announces that a government-provided resource is safe for consumption 

when it is not (Wurfel, Croft, or others who made public statements).

As the majority acknowledges, plaintiffs point to no factually similar controlling case in which a 

court found that such conduct violated a constitutional right to bodily integrity. “This alone 

should have been an important indication to the majority that [the defendants’] conduct did not 

violate [plaintiffs’] ‘clearly established’ right.” White, 137 S. Ct. at 552. 

In fact, in case after case around the country, courts have consistently rejected 

substantive-due-process claims based on the type of conduct alleged here. Branch v. Christie is 

one such case. 2018 WL 337751 (D.N.J. Jan. 8, 2018). Branch dealt with a bodily integrity 

claim brought by parents of New Jersey public school children against several state officials for 

“knowingly expos[ing] the children . . . to water that was contaminated with unsafe levels of 

lead,” and “concoct[ing] a scheme to cover up the health hazard.” Id. at *1. The parents said 

that state employees caused the lead contamination by “cancel[ling] work orders to change 

outdated and lead-saturated filters,” and “allowing several filters to be used for upwards of five 
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years.” Id. (internal quotation marks and citation omitted). Once the public became aware of the 

unsafe lead levels in the school’s drinking fountains, state employees “undertook a course of 

providing misinformation to parents, telling the community that the water was safe.” Id.

(internal quotation marks and alterations omitted). The Branch court dismissed the parents’ 

claims, finding “no authority” supporting their bodily integrity theory. Id. at *8. As the court 

explained, “[t]he liberty interest in bodily integrity guarantees the ‘right generally to resist 

enforced medication,’ the right to be ‘free from medical invasion,’ and the right to an abortion,” 

but “not to guarantee . . . a right to minimum levels of safety” or protection from contaminated 

water. Id. at *7 (citations omitted).

Here, as in Branch, government officials allegedly exposed others to water contaminated 

with lead. And here, as in Branch, certain government officials allegedly attempted to hide the 

lead contamination. The Branch court could find no authority indicating that such conduct 

violated a substantive due process right—not even the Supreme Court’s bodily integrity cases 

were close to on point. That court’s conclusion shows how unclear it would have been for the 

regulators and policymakers in this case to have anticipated that their actions might have violated 

an established bodily integrity right. 

Coshow v. City of Escondido, a state court case, also sheds light on the novelty of 

plaintiffs’ asserted right. 132 Cal. App. 4th 687 (Cal. Ct. App. 2005). There, the California 

Court of Appeals rejected residents’ bodily integrity claims against the City of Escondido and 

California’s Department of Health Services over their decision to add fluoride to public drinking 

water. Id. at 698. The residents asserted that adding fluoride to the water exposed the public to 

unnecessary health risks. Id. But the court held that, just as the Constitution did not guarantee 

any “right to a healthful or contaminate-free environment,” it likewise did not guarantee a right 

to receive fluoride-free drinking water from the City. Id. at 709–10. This was so even though 

the fluoride might have contained “trace levels of lead and arsenic[.]” Id. at 700. The court 

reasoned that the residents’ claim came down to an asserted right to receive “public drinking 

water of a certain quality.” Id. at 708–09. And it held that the “mere novelty” of that claim 

indicated it was not “so rooted in the traditions and conscience of our people as to be ranked as 

fundamental.” Id. (quoting United States v. Salerno, 481 U.S. 739, 751 (1987)). Accordingly, 
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the court held that the right to fluoride-free drinking water was not protected by substantive due 

process. Id.

Just as in Coshow, the novelty of plaintiffs’ claim here shows that it is not clearly 

established. The majority attempts to draw a disingenuous distinction between this case and 

Coshow. It reasons that, in Coshow, adding fluoride to drinking water served the beneficial 

purpose of preventing tooth decay while, in this case, adding lead to water served no 

countervailing governmental interest. I certainly do not quibble with the premise that adding 

lead to water furthers no discernable beneficial purpose. But that is not what happened here. No 

government official made a conscious decision to introduce lead into Flint’s water. Instead, the 

Emergency Managers made a conscious and legitimate policy decision to switch to the Flint 

River as a water source to cut costs—and they did so in reliance on guidance from engineering 

firms and the MDEQ. That hardly demonstrates that the decision to switch to the Flint River was 

made with no countervailing governmental interest in mind. The government officials’ resourceallocation decisions during a budgetary crisis did not constitute obvious violations of the right to 

bodily integrity because of the grave health consequences they allegedly caused in hindsight.

Moreover, that some governmental officials made public statements about the safety of 

Flint’s water does not make the unlawfulness of any defendant’s conduct any more obvious. As 

the Second Circuit put it, “no court has ever held a government official liable for denying 

substantive due process by issuing press releases or making public statements”—regardless of 

whether the public statements were true or false. Benzman v. Whitman, 523 F.3d 119, 125, 127 

(2d Cir. 2008) (rejecting residents’ substantive due process claims against EPA officials for 

making “substantially exaggerated” statements regarding air quality after the September 11 

terrorist attacks). Benzman invoked the principles underlying a similar post-September-11 case, 

Lombardi v. Whitman, 485 F.3d 73 (2d Cir. 2007). In Lombardi, workers who performed search, 

rescue, and clean-up services at the World Trade Center site in the aftermath of the terrorist 

attacks alleged that the EPA violated their right to bodily integrity by falsely assuring them that it 

would be safe to work without respiratory protection. Id. at 74. Relying on those assurances, 

several workers went without that protection and later suffered adverse health effects. Id. at 75. 

Without definitively deciding whether the alleged false assurances interfered with the workers’ 
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fundamental right to bodily integrity, the court found that they were nevertheless not conscienceshocking. Id. at 82–83. In so deciding, the court expressed concern with imposing broad 

constitutional liability on EPA officials for making false statements in the course of fulfilling the 

agency’s mission. The court reasoned that “the risk of such liability will tend to inhibit EPA 

officials in making difficult decisions about how to disseminate information to the public in an 

environmental emergency.” Id. at 84. Accordingly, absent any allegation of an intent to harm, 

the court declined to extend substantive due process to cover what was “in essence a mass tort 

for making inaccurate statements.” Benzman, 523 F.3d at 127–28.

This case implicates similar, albeit not identical, concerns to those invoked in Lombardi 

and Benzman. As the majority points out, there is no allegation that any defendant here intended 

to harm a Flint resident. And like the EPA regulators in Lombardi and Benzman, Wurfel made 

public statements pursuant to his official role as MDEQ’s Director of Communications. To be 

sure, those statements countered evidence about Flint water’s lead levels presented in two 

separate outside studies. But they were also consistent with information provided to Wurfel by 

officials from his own department. That information was, in retrospect, misguided. Plaintiffs do 

not assert, however, that Wurfel made any knowingly false statements for the purpose of 

causing harm. The same goes for Croft. When he issued a press release asserting that Flint’s 

water was of a “high quality,” at least one engineering firm and the MDEQ had concluded that 

the water treatment plant was capable of adequately treating Flint’s water. In other words, the 

allegations do not show that Croft made a knowingly false public statement for the purpose of 

causing harm. Given the absence of any such allegation, and because no court has ever 

concluded that the Due Process Clause covers the public statements of government officials, it 

can hardly have been apparent to Wurfel or Croft that their statements clearly violated plaintiffs’ 

due process right to bodily integrity.

Due to the lack of controlling precedent and the many cases suggesting substantive due 

process does not protect plaintiffs’ asserted right, the majority again falls back on its exaggerated 

characterization of defendant’s actions and statements, likening them to the “systematic” 

poisoning of an entire community. Advancing that narrative, the majority concludes that this 

case is one of the “easy” ones that should never have arisen in the first place. See United States 
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v. Lanier, 520 U.S. 259, 271 (1997). “Of course, in an obvious case, [general] standards,” (or 

reasoning) “can ‘clearly establish’ the answer, even without a body of relevant case law.” 

Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (citation omitted). But this is not one of those 

cases. As already demonstrated, the majority’s systematic poisoning narrative has no basis in 

plaintiffs’ factual allegations.7 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. It is 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. 

The proper framing of the factual narrative exposes how far off base are the bodily 

integrity cases relied upon by the majority. How could those cases have provided any practical 

guidance to government officials like Earley, Ambrose, Croft, or the MDEQ employees? For 

instance, how should Rochin’s prohibition against induced vomiting to obtain evidence have 

informed Earley’s oversight of the switch from the DWSD to the Flint River and what 

professional opinions he was entitled to rely upon when the City made the switch? And how 

should it have informed Ambrose’s decision to continue using the Flint River as a water source 

and what professional opinions he was entitled to rely upon in doing so? What about the MDEQ 

employees? How should Riggins’s limits on the state’s ability to administer antipsychotic drugs 

to pretrial detainees have changed what kind of advice the MDEQ employees gave the City 

about federal corrosion-control requirements? Or what about the fact that Cruzan allows a state 

 

7What is more, the majority’s exaggerated narrative runs contrary to what is publicly known in the 

aftermath of the Flint Water Crisis. For instance, plaintiffs point out that the state has brought criminal charges 

against various defendants and ask us to take judicial notice of those charges as providing context for their bodily 

integrity claim. Of course, I agree with the majority that it is inappropriate to consider those charges for the purpose 

of deciding plaintiffs’ constitutional claim. But I note that even if it were appropriate to consider them, the charges 

would not support plaintiffs’ assertion that defendants’ conduct is so obviously unlawful that qualified immunity 

does not shield them from plaintiffs § 1983 suit. In fact, they prove just the opposite. If the defendants’ actions are 

obviously unlawful, then one would expect relatively speedy probable-cause determinations. Reality suggests 

otherwise. Consider this: the state issued its complaint against Lyon on June 14, 2017, but the court did not find 

probable cause to bind him over for trial until August 24, 2018. In the meantime, the trial judge spent around 

11 months on preliminary examinations just to find probable cause existed. Other defendants, such as MDEQ 

Employee Shekter-Smith and MDHHS Executive Peeler, have not even been bound over yet, despite the state filing 

complaints against them as early as July 2016. These cases have languished unusually long in probable cause 

proceedings. That alone suggests that the egregiousness of defendants’ actions is not so apparent as the majority 

makes it out to be.
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to demand clear and convincing evidence that an incompetent patient no longer desires life 

support before cutting it off? How should that have influenced the content of Wurfel’s (or any 

other defendant’s) public statements about the water’s quality? The answer to these questions 

is—clearly—not established.

And although the right plaintiffs allege is not established, various courts have certainly 

considered it—and rejected it. See Branch, 2018 WL 337751; Coshow, 132 Cal. App. 4th 687;

Benzman, 523 F.3d 119; Lombardi, 485 F.3d 73.

8

 But ignoring those cases, the majority turns, 

curiously, to a few federal and state cases arising from the Flint Water Crisis itself. The majority 

begins its opinion with the proclamation that it joins a few decisions concluding that some of 

these same defendants, and some others, violated various Flint residents’ substantive due process 

rights. Those cases offer weak support for the majority’s position. Oddly, one of the decisions it 

cites is the very case before us on appeal, Guertin v. Michigan, 2017 WL 2418007 (E.D. Mich. 

June 4, 2017). The second is authored by the same judge as authored Guertin, and its bodily 

integrity analysis block-quotes more than 2,000 words from the Guertin analysis. In re Flint 

Water Cases, 329 F. Supp. 3d 369, 397–400 (E.D. Mich. 2018), vacated on other grounds (Nov. 

9, 2018). And that case appears to follow the same analytical errors as the state case to come 

before it—that is, just like the state case, it makes several logical leaps to conclude that policy 

and regulatory decisions and statements are on par with an intentional introduction of a 

contaminant into another’s body. Mays v. Snyder, 916 N.W.2d 227 (Mich. Ct. App. 2018); Mays 

v. Snyder, No. 16-000017-MM (Mich. Ct. Cl. Oct. 26, 2016). These few cases and their 

 

8The number of cases rejecting similar environmentally based claims is significant. See Kaucher v. Cty. of 

Bucks, 455 F.3d 418, 420, 428–30 (3d Cir. 2006) (rejecting a substantive-due-process claim by corrections officials 

who contracted a disease allegedly due to the jail’s unsanitary conditions and provision of false and misleading 

information about the extent of the sanitary problem); Walker v. City of E. Chicago, No. 2:16-cv-367, 2017 WL 

4340259, at *6 (N.D. Ind. Sept. 29, 2017) (rejecting a substantive-due-process claim that the government allowed a 

housing authority to “build and operate public housing in an area with contaminated soil, thus increasing their risk of 

injury”); In re Camp Lejeune N. Carolina Water Contamination Litig., 263 F. Supp. 3d 1318, 1325, 1359 (N.D. Ga. 

2016) (rejecting a substantive-due-process claim by service members against government officials at the Marine 

base where they lived based on the officials’ failure to monitor water quality and notify service members of the 

presence of toxic substances in the water); Naperville Smart Meter Awareness v. City of Naperville, 69 F. Supp. 3d 

830, 839 (N.D. Ill. 2014) (rejecting a substantive-due-process claim by residents of a city asserting that radio 

frequency waves emitted by “smart meters” that the city installed in their homes posed health risks); J.S. ex rel. 

Simpson v. Thorsen, 766 F. Supp. 2d 695, 712 (E.D. Va. 2011) (rejecting a substantive-due-process claim brought 

by an elementary student that school officials knowingly concealed the school’s mold problems to the detriment of 

the student’s health).
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redundant analyses provide a weak foundation on which to build a new bodily integrity 

jurisprudence.

In sum, the majority’s opinion is a broad expansion of substantive due process, which 

contradicts the traditional understanding that due process does not “supplant traditional tort law” 

or impose a duty on the government to ensure environmental safety. Collins, 503 U.S. at 126 

(citation omitted). What is more, it 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. 

White, 137 S. Ct. at 552 (ellipses in original) (citation omitted). That turns qualified immunity 

on its head.

IV

The majority’s conclusion that the defendants violated plaintiffs’ clearly established right 

to bodily integrity has some facial appeal, of course, because we sympathize with the Flint 

residents’ plight. It is wrong, however, on both the facts and the law. For all of the above 

reasons, I join the majority in its denial of sovereign immunity to the City of Flint and in 

dismissing various defendants from the case. But I dissent from its denial of qualified immunity 

to Earley, Ambrose, Croft, Shekter-Smith, Busch, Prysby, and Wurfel.