(CN) — A Sixth Circuit panel found Wednesday that the mayor of a Michigan city has immunity against a toxic water lawsuit brought by city residents claiming the city’s “deliberate indifference” led to physical injuries and emotional harm, but denied that same immunity to the city’s former water plant manager.
Benton Harbor Mayor Marcus Muhammad and the city’s former water plant manager, Michael O’Malley, asked the appeals panel earlier this year earlier this year to overturn a lower court’s ruling denying them immunity from the federal class action in 2021 against city officials.
While the panel opted to overturn the ruling in part, the court upheld the lower court’s decision to deny O’Malley immunity from the lawsuit.
The Benton Harbor residents claimed that city officials, including Muhammad and O’Malley, knew the water was contaminated in 2018 after lab results showed the city’s water contained toxic levels of lead — which the Environmental Protection Agency warns can cause serious health problems, especially in children — but still made statements ensuring residents that the water was safe to drink.
Particularly, the plaintiffs said Muhammad claims in press releases that the “water was safe to drink, the corrosion control measures, flushing, and filtering worked” despite knowing the water was unsafe.
But the panel disagreed that Muhammad showed “deliberate indifference” in ignoring the water’s toxic lead levels.
“Although the plaintiffs allege generally that Muhammad made a number of knowing and false statements regarding the safety of the water and measures to address lead in the water, they do not point to any specific statements that Muhammad himself made,” U.S. Circuit Judge Karen Nelson Moore, a Bill Clinton appointee, said in a 24-page decision.
The panel also dismissed the plaintiffs’ claim that Muhammad had violated their right to bodily integrity as the “final decisionmaker for the city.”
Since the plaintiffs failed on their claims to deny Muhammad immunity against the toxic water class action, the panel found that they failed to meet their burden for claims that the mayor violated their right to bodily integrity.
Unlike Muhammad though, the panel found that O’Malley’s position as the city’s water plant manager gave him “personal knowledge about the potability of Benton Harbor’s water.”
The panel also pointed to several emails provided by the plaintiffs that they claim demonstrate O’Malley lying to local residents about the safety of the city’s water supply.
In one email, O’Malley tells a resident that water in the homes was safe to “drink and cook” because the water supply provides “clean water right to their spout.”
“In fact, the allegations against O’Malley are particularly concerning because as the Water Plant Operator, O’Malley should have been intimately aware of the ramifications of lead in the water and the impact that providing false information to citizens could have,” the panel said.
U.S. Circuit Judge Rachel Bloomekatz, a Joe Biden appointee, joined the decision in full, but U.S. Circuit Judge John Nalbandian, a Donald Trump appointee, partially dissented and disagreed with the panel’s decision to deny O’Malley immunity.
Instead, Nalbandian argues that the email in which O’Malley claims the drinking water is safe is not enough to prove he “repeatedly lied” to the public.
“The only non-conclusory fact they allege against O’Malley is that he made one isolated false statement to one individual with no connection to any plaintiff,” Nalbandian said.
The water in Benton Harbor has been safe since January 2022, according to a Michigan government website.
Attorneys from both parties did not respond to a request for comment.