Read on Twitter
Can people harmed by #Covid19 sue the government for failing to keep them safe?
A (probably very long because I'm a long-winded law professor) thread:
A (probably very long because I'm a long-winded law professor) thread:
2/ Short answer: It will be very hard to hold elected/appointed federal/state/local officials legally accountable for failing to protect the health of the general population. But claims by people in custody/detention who have no ability to protect themselves may have more success
3/ For people in custody, failure to protect health and safety may amount to a violation of the 8th Amendment's prohibition on cruel and unusual punishment.
4/ The legal Q is whether failure to reduce density, prioritize people in custody/detention for testing (guidelines dictate people in "congregate" settings, eg nursing homes, shelters & jails should be tested first if supplies are scarce) etc. amounts to deliberate indifference.
5/ See, e.g., Estelle v. Gamble, a SCOTUS case holding that ordinary medical malpractice or negligence doesn't necessarily amount to "deliberate indifference." https://www.law.cornell.edu/supremecourt/text/429/97
6/ So, can people who are not in custody/detention sue federal/state/local leaders for something like "deliberate indifference" to their health? Translating the legal authority & moral duty govt officials have to protect public health into a legally enforceable duty is difficult
7/ SCOTUS precedents (with truly horrifying factual backgrounds) make it clear that our US Constitution is a "negative" one. It secures our rights to be left alone, not "positive" rights to protection or support.
8/ This means the biggest question will be whether incautious government responses to Covid19 are characterized as "nonfeasance" (failure to help) or "misfeasance" (harmful action).
9/ The nonfeasance/misfeasance distinction is notoriously slippery--philosophically & legally, leaving judges w/ more wiggle room than you might expect.
10/ 99 times out of 100, courts are quick to dismiss claims by private plaintiffs seeking to hold government accountable for the public's health. BUT... let me tell you about a situation that may turn out to be that rare case where officials are legally held responsible. Flint.
11/ When Flint residents first sued state and local officials for damages arising out of the water crisis, I published a prediction that their claims would probably be dismissed. But the cases have survived so far and are continuing to make their way through the courts.
12/ See, e.g., https://www.npr.org/2020/01/21/798331185/supreme-court-allows-flint-water-lawsuits-to-move-forward-officials-not-immune
13/ So... how are federal judges allowing the Flint cases to proceed, and could the same happen for claims arising out of failure to protect the public from Covid19?
14/ I'll start with what the judges are saying re: Flint, then I'll explain why incautious responses to Covid19 by some governors might be distinguishable from Snyder's role in the Flint water crisis.
15/ From E.D. Mich., 384 F.Supp.3d 802:
The Flint plaintiffs "plead facts which, when taken as true, show that Governor Snyder was deliberately indifferent:
1) Gov. Snyder knew of facts from which he could infer that plaintiffs faced a substantial risk of serious harm...
The Flint plaintiffs "plead facts which, when taken as true, show that Governor Snyder was deliberately indifferent:
1) Gov. Snyder knew of facts from which he could infer that plaintiffs faced a substantial risk of serious harm...
16/
2) Flint plaintiffs successfully claim that Gov. Snyder did in fact infer that plaintiffs faced such a risk of harm," as supported by documentation of internal govt discussions/assessments.
2) Flint plaintiffs successfully claim that Gov. Snyder did in fact infer that plaintiffs faced such a risk of harm," as supported by documentation of internal govt discussions/assessments.
17/
3) Flint plaintiffs plausibly argue Snyder demonstrated a callous disregard for their right to bodily integrity in 2 ways: a) Initially, instead of mitigating the risk, he covered it up. In private, he worried about...the crisis. But in public, he denied all knowledge...
3) Flint plaintiffs plausibly argue Snyder demonstrated a callous disregard for their right to bodily integrity in 2 ways: a) Initially, instead of mitigating the risk, he covered it up. In private, he worried about...the crisis. But in public, he denied all knowledge...
18/
"As a result, plaintiffs were lured into a false sense of security. They could have taken protective measures, if only they had known what the Governor knew. Instead, the Governor misled them into assuming that nothing was wrong, even encouraging them to drink the water."
"As a result, plaintiffs were lured into a false sense of security. They could have taken protective measures, if only they had known what the Governor knew. Instead, the Governor misled them into assuming that nothing was wrong, even encouraging them to drink the water."
19/
(3)(b) (I warned you about being long-winded, right?):
Subsequently, even once he acknowledged the crisis, Snyder downplayed the risks that plaintiffs faced, undermining efforts to enact protective measures."
(3)(b) (I warned you about being long-winded, right?):
Subsequently, even once he acknowledged the crisis, Snyder downplayed the risks that plaintiffs faced, undermining efforts to enact protective measures."
20/
So, in the Flint cases, the federal judge has found that
"Viewed as a whole, the allegations plausibly describe 'conscience shocking' conduct. Governor Snyder's actions were deliberately indifferent and exhibited a callous disregard for plaintiffs' right to bodily integrity"
So, in the Flint cases, the federal judge has found that
"Viewed as a whole, the allegations plausibly describe 'conscience shocking' conduct. Governor Snyder's actions were deliberately indifferent and exhibited a callous disregard for plaintiffs' right to bodily integrity"
21/ BUT... the Flint cases may be distinguishable from a hypothetical claim by people harmed by Covid19 on multiple grounds:
22/
First, the Flint plaintiffs’ argument focuses on invasion of bodily integrity through nonconsensual (b/c it was unknowing) consumption of life-threatening substances (lead & Legionella).
First, the Flint plaintiffs’ argument focuses on invasion of bodily integrity through nonconsensual (b/c it was unknowing) consumption of life-threatening substances (lead & Legionella).
23/ It’s already a stretch, in my opinion, and to make the same argument for infection with coronavirus through breathing/touching ones face/etc. too close to someone who is infected (vs. ingestion of contaminated water) might be even more of a stretch.
24/
Second, the Flint plaintiffs have the advantage of being able to point to affirmative acts of some—but not all—of the defendants, which caused the contaminant to be introduced into the water supply
Second, the Flint plaintiffs have the advantage of being able to point to affirmative acts of some—but not all—of the defendants, which caused the contaminant to be introduced into the water supply
25/
The different types of misfeasance—actions that caused introduction of the contaminant and actions that “covered up” the risks—are being addressed independently by the courts since they rest on different legal grounds and apply differently to different defendants.
The different types of misfeasance—actions that caused introduction of the contaminant and actions that “covered up” the risks—are being addressed independently by the courts since they rest on different legal grounds and apply differently to different defendants.
26/
But as I often teach my law students, seemingly distinct claims can and do intermingle in the minds of judges. I think the lack of affirmative acts by any official contributing to introduction of coronavirus is another basis for distinction that will benefit all officials.
But as I often teach my law students, seemingly distinct claims can and do intermingle in the minds of judges. I think the lack of affirmative acts by any official contributing to introduction of coronavirus is another basis for distinction that will benefit all officials.
27/
Third, in judging whether government action "shocks the conscience," the Flint courts have distinguished b/w two different situations...
Third, in judging whether government action "shocks the conscience," the Flint courts have distinguished b/w two different situations...
28/
Scenario A: “where unforeseen circumstances demand the immediate judgment of an executive official, liability turns on whether decisions were made maliciously and sadistically for the very purpose of causing harm.”
Scenario A: “where unforeseen circumstances demand the immediate judgment of an executive official, liability turns on whether decisions were made maliciously and sadistically for the very purpose of causing harm.”
29/
Scenario B: “where an executive official has time for deliberation before acting, conduct taken with “deliberate indifference” to the rights of others “shocks the conscience.”
Scenario B: “where an executive official has time for deliberation before acting, conduct taken with “deliberate indifference” to the rights of others “shocks the conscience.”
30/ Judges have found that the decisions of the Flint defendants were made over a long enough period of time that the Scenario B applies. I could easily imagine the same judges deciding that initial decisions about the coronavirus pandemic fall under Scenario A... BUT...
31/
Later decisions (e.g., ongoing failures to ramp up testing, reopening schools, businesses, etc. with insufficient data due to ongoing lack of testing) could be determined to fall under Scenario B.
Thus ends today's long-winded musings.
Later decisions (e.g., ongoing failures to ramp up testing, reopening schools, businesses, etc. with insufficient data due to ongoing lack of testing) could be determined to fall under Scenario B.
Thus ends today's long-winded musings.
