UPDATE: Flint Water: A Killer Without A Criminal?

Jan. 22, 2016 (Mimesis Law) — Poisoning 100,000 people can’t be right. And, indeed, it’s not. That it happened in a poor, largely minority city like Flint, Michigan, just adds fuel to the fire of callousness about the lives of human beings.

From 2011 to 2015, Flint was in state receivership, its finances controlled by a succession of four emergency managers appointed by [Gov. Rick] Snyder’s administration. The state returned some financial control to the city last year, and Mr. Snyder said Friday that he wanted to give it still more autonomy. It was one of those state-appointed managers who, in a cost-cutting move, switched the city in April 2014 from taking water from Detroit’s system to drawing water from the Flint River.

Except the Flint River turned out to be a really, really bad choice of water sources, as its saltiness corroded pipes, putting lead into the water, which went into the mouths of Flint residents.

Almost immediately, people began to complain about the water’s color, smell and taste. Bacterial contamination was found, and then the chemicals used to disinfect the water caused a different kind of contamination, but state officials insisted that the problems had been managed and that the water was safe.

Not that the residents didn’t notice, and complaints started coming in, studies showed that this was a huge problem, and government cavalierly dismissed it.

The 274 pages of emails released under pressure on Wednesday by Gov. Rick Snyder of Michigan show a cynical and callous indifference to the plight of the mostly black, poverty-stricken residents of Flint, who have gone for more than a year with poisoned tap water that is unsafe to drink or bathe in. There is little doubt that an affluent, predominantly white community — say Grosse Pointe or Bloomfield Hills — would never face such a public health catastrophe, and if it had, the state government would have rushed in to help.

The water from the corrosive Flint River would have been just as dangerous had it come out of taps in Grosse Pointe or Flint. But if Snyder’s office had to field calls from its pals in Bloomfield Hills, would it have blown them off?

The newly released emails show that members of Mr. Snyder’s administration consistently mocked and belittled the complaints of Flint residents and the evidence gathered by independent researchers. Outrage is the only sensible response to this man-made disaster, in which inexcusable decisions, by the state and emergency managers appointed by Mr. Snyder to oversee the city’s finances, led to corrosion of the water pipes and high levels of lead in the water and the blood of city residents.

To attribute this mockery to racism turns a blind eye to the financial hole in which Flint found itself. Grosse Pointe wouldn’t find itself in receivership, in need of drastic cost-cutting measures because it was broke. Flint was in the toilet and constrained to find ways to cut costs. In doing so, the emergency manager chose poorly.

In reacting to the overwhelming complaints, the credible studies demonstrating that the water being piped into Flint was dangerously bad, Snyder chose more than poorly. But now, after the residents of Flint were given water, a basic commodity of life, that was poison, after the governor should have known it was poison if only he didn’t hate Flint residents so much, what’s to be done?

Investigations have been started, though that’s by no means indicative of anything coming out of them on the back end. Was this a crime? Will anyone pay?

The New York Times condemns Gov. Snyder’s outrageous refusal to give a shit about 100,000 people being poisoned in Flint, calling it “depraved indifference.” For the unwary, this phrase has significance, as it’s one of the mental states that gives rise to a charge of Murder in the Second Degree under New York law. This was a calculated phrase.

Should it turn out that, buried within the emails, state officials acknowledged that they were killing Flint residents with the water and concealed it, that would give rise to one scenario. But if they just callously dismissed citizens’ complaints as cranks and malcontents, that would be what important public officials call “Tuesday.” Happens constantly, just as people complain constantly. There are always complaints. Sometimes, as here, they happen to be right, and the consequences happen to be deleterious. Who knew?

Assuming state officials didn’t knowingly allow 100,000 people to be poisoned on purpose, the question remains whether their indifference would subject them to prosecution for the violation of the constitutional rights of Flint residents. The answer, most likely, is no, as the officials would enjoy qualified immunity for the exercise of discretionary acts that did not violate a clearly established constitutional right.

Was it wrong of the emergency manager, appointed by Gov. Snyder, to try to find ways to save money in Flint? Of course not, though the rejoinder is that it should never have come at a risk of life. And indeed, it shouldn’t. And had it been Grosse Pointe, you can bet your ass it wouldn’t. But Flint was poor. Flint was black. Flint was, well, just not worthy of the government’s serious concern.

But was it depraved indifference? Without more, probably not. The stench of Snyder’s dismissal of complaints of 100,000 being poisoned, much like the stench of the water from the Flint River, stinks of banal indifference. The poor, the black, the complainers, the citizens, were treated with the ordinary callousness of government.

There is nothing to suggest that Snyder knew of, and deliberately ignored, the fact that he was allowing the residents of Flint to be poisoned. He just didn’t care enough about them to be bothered to take their complaints seriously. This isn’t a crime. It’s a disgrace. It’s government hard at work destroying lives because it just can’t muster enough concern to do otherwise.

Update: Some have noted that it’s possible that the investigation into what went so horribly wrong could unearth evidence to suggest that there was intentional or reckless conduct involved. That’s certainly true, but no such evidence exists yet, and should new evidence be found that alters the analysis, then the analysis changes.

What can’t be done is to presume the existence of non-existent evidence, and base an analysis on speculation. For now, we’re constrained to work with what exists. If that changes, then analysis will change with it.

Update 2: The expectation was that there would be no “smoking gun” to show that not only did the state have reason to know that the Flint River water was poisonous, but in fact believed that to be the case while it allowed Flint residents to drink the water under the guise that all was well. That expectation may be wrong:

The Michigan Department of Technology, Management & Budget decided to haul water coolers into the Flint state building in January of 2015 out of concern over the city’s water quality, a year before bottled water was being made available to residents, according to documents obtained by Progress Michigan.

So they introduced water coolers and bottled water into state offices, while allowing citizens to drink poison? Is this the smoking gun that is needed to prove that the state knew, and still let the children drink lead-tainted water? This could change everything.

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