Jackson Jambalaya

"A catastrophe was not thrusted upon Jackson; it created one." Thus said the Fifth Circuit Court of Appeals as it revived a lawsuit against the city of Jackson for contaminating its water with high amounts of lead last week.  

Several Jackson residents sued Jackson and several former Jackson officials in U.S. District Court in 2022*, alleging the defendants failed to provide safe, clean drinking water.  The plaintiffs charged in a 2022 press release: 

The Complaint goes on to note that even before the water system failed, Jackson’s water supply was not fit for human consumption due to the high levels of lead and other contaminants, in violation of the plaintiffs’ constitutional rights, the federal Safe Drinking Water Act, and the Environmental Protection Agency’s Lead and Copper Rule (LCR). This environmental justice and public health crisis, decades in the making, was wholly foreseeable by Defendants’ actions and negligence, and left residents in an untenable position – lacking access to clean, safe water...

The Complaint further states that Plaintiffs were poisoned by lead and other contaminants released into Jackson’s drinking water as a result of Defendants’ conscience-shocking deliberate indifference. Plaintiffs assert claims for personal injuries based on Defendants’ deprivation of Plaintiffs’ rights to bodily integrity protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution....Earlier post.

The case was assigned to U.S. District Judge Kristi Johnson.  

Judge Johnson dismissed the complaint with prejudice in June 2024 and ruled the defendant officials had qualified immunity.  The plaintiffs appealed to the Fifth Circuit.  

A three-judge panel adjudicated the case: Judges Dennis (Clinton), Catherine Haynes (Bush), and Kurt Englehart (Bush). It published the opinion on November 17.  Judge Haynes authored the majority opinion while Judge Dennis dissented. 

The Appeals Court wasted no time in showing where the opinion was going as it opened: 

The alleged facts of this case mirror one of the greatest public health emergencies in the United States in the last decade—the Flint water crisis. Instead of Flint, Michigan, these events take place in Jackson, Mississippi. Here, Plaintiffs allege that the City introduced lead into the drinking water, pumped the toxic water into people’s homes, and lied about the safety of the water. In reliance on those lies, residents drank, cooked with, and bathed in toxic water. They now face tragic, lifelong health effects. Because the alleged facts plausibly state that the City violated Plaintiffs’ Fourteenth Amendment right to bodily autonomy, the lawsuit may proceed. We REVERSE in part, AFFIRM in part, and REMAND

The Court repeatedly damned Jackson and its leadership: 

* The city's water sources are far more acidic as the water at the O.B. Curtis and Fewell plants have a PH below 6.5.  The recommended pH is 8.5, thus Jackson's pH was 100 times more acidic than what the Health Department recommended.  

* "On top of failing to treat the water, the City actively made matters worse and covered up the dangerousness of the situation to the public".  

* The Health Department said Jackson was at "high risk for lead poisoning".  The city knew it had a problem in 2013.  The lead concentration in water was 8.8 ppb in 2009 but rose to 33.5 ppm in 2013.  

* O.B. Curtis had a defective line treatment pump that was clogged thanks to using lime powder that clogged the pipes.  The injectors were designed to use liquid lime.  Thus the acidic water was not treated.  

Then-Jackson Public Works Director Willie Bell warned Mayor Chokwe Lumumba but he unexpectedly passed away and the problem was ignored. 

The Court said Mayor Yarber and Public Works Director Kisha Powell made the situation "worse."  Powell switched the city from the high pH well water used in South Jackson to more acidic, low pH surface water.  The city shut down the wells and started using the pumping station on Maddox road that received its water from the two water plants fed by the Pearl River. The well pH was over 8. 

The change in pH is important.  The problem is not that a substantial number of Jackson's pipes have lead but the lead is leaching due to acidic pH.  Heat can worse the leaching as well.  

*22% of homes exceeded 15 ppb, more than Flint, MI at 17%. 15 ppb of lead is the threshold for "EPA action" 

*  Judge Haynes minced no words as she called the city "derelict" in its duty to provide safe water as it "falsely assured residents the water was safe to drink." 

* Repeated boil water notices merely made things worse.  Although boiling water killed bacteria,  it increased leaching, which in turn increased the concentration of lead.  

* The Yarber administration fired a whistleblowing engineer after he went public and said the water lines had solid lead bands every twenty feet.  Clarion-Ledger story on whistleblower.

* The younger Lumumba does not escape the Court's notice as it mentions the 2020 EPA Emergency Administrative Order and notes "Jackson did not publicly acknowledge the order for a year" (until this website broke the news of the order.).  

After the evisceration, the Court spelled out the issues of the case: 

At issue here is whether one’s substantive due process rights are infringed when a City introduces toxins into the water, the City pumps the water into people’s homes, the City lies to citizens about the safety of the water, and citizens rely on that guarantee in drinking the water, suffering irreparable physical harm. Plaintiffs urge that the answer is yes under two substantive due process rights—the right to bodily integrity, and the right to be free from state-created danger.

Although it is recognized in several Circuits, the Fifth Circuit has never recognized such rights  - until now.  

The defendants argued there is no constitutional right to clean water.  The Court said such is true but if the city chooses to offer water services, it must comply with the Constitution and ensure the water is safe to drink.  Judge Haynes held "the plaintiffs have successfully alleged the defendant's conduct violated their right to bodily autonomy."  Having dispensed with the issue, the Court moved on to the issue of deliberate indifference.  

Remember Cassandra Bell's warnings about the lime problems? Those admonitions came back to haunt Jackson: 

Armed with knowledge of Bell's recommendation, Mayor Yarber and Director Powell declined to fix the problem.  Rather than take the steps necessary to stop lead form leaching further into the water, the City ignored warnings.  Indeed, the only action the City took -switching a section of the City's water source from groundwater to surface water they knew to be corrosive shocked the system, causing disastrous effects. 

Despite knowing the problem in June 2015, defendants didn't notify the public until seven months later.  The defendants repeatedly lied to the public, falsely assuring them the lead ridden water was safe.  The city's boil water recommendations to boil water made the lead problem worse. 

"A catastrophe was not thrusted upon Jackson, it created one," decreed the Fifth Circuit.  

The Court held the plaintiffs stated a plausible claim to both their right to bodily integrity and right to be free from "state-created danger" was violated.**   The state may be held liable when it creates or exacerbates the danger ruled the Court.  

The Court upheld the qualified immunity claims.  The case is remanded to U.S. District Court where the lawsuit will proceed against the city of Jackson.  

* Priscilla Sterling, Raine Becker, Shawn Miller, and John Bennett are the plaintiffs.  The defendants are the city of Jackson, Chokwe Antar Lumumba, Tony Yarber, Kishia Powell, Robert Miller, Jerriot Smash,  and Trilogy Engineering Services.  The plaintiffs attorneys are  Lieff Cabraser Heimann & Bernstein, LLP, the Law Office of Larry D. Moffett, PLLC, Kershaw Talley Barlow, P.C., and Gibbs Travis PLLC. 

** The opinion adopts a state-created danger test: 1) State affirmatively acts to create or enhance danger to plaintiff, 2) danger is specific to the plaintiff and distinct from danger to general public, 3) act causes plaintiff's harm, and 4) state's conduct shocks the conscience. 

Posted below are the opinion and the lower court judgment. The majority opinion is less than 40 pages.