What happens when the government puts poison in your water, tells you it is safe, and then makes you fight through the courts to get anyone to answer for it?
That is the question beneath Sterling v. City of Jackson.
Jackson residents alleged that city officials knew their water system was vulnerable, failed to correct known problems, made decisions that worsened lead contamination, delayed warning residents, and continued assuring the public that its water was safe.
The plaintiffs– Priscilla Sterling, Raine Becker, Shawn Miller, and John Bennett–sued individually and on behalf of a proposed class of Jackson residents. They named the City of Jackson, Mayor Chokwe A. Lumumba, former Mayor Tony Yarber, former Public Works Directors Kishia Powell and Robert Miller, and Interim Public Works Director Jerriot Smash as defendants, along with Trilogy Engineering Services, L.L.C. The plaintiffs brought federal claims under 42 U.S.C. § 1983 and state-law tort claims, alleging that the City and its officials knew of serious problems with the water system, failed to adequately address them, made decisions that allegedly worsened lead contamination, and failed to promptly warn residents about the danger. The Fifth Circuit’s opinions describe allegations that Yarber and Powell knew of problems with the City’s corrosion-control system and that the City’s later switch from groundwater to more acidic surface water allegedly worsened lead leaching.
The Fifth Circuit’s en banc court rejected their constitutional claims. The court held that the Constitution does not recognize the particular rights they asserted–to be free from contaminated municipal water and to receive truthful information about that contamination. The court pointed the plaintiffs toward tort law, elections, and political remedies.
And there is the problem.
Not because every government failure should become a constitutional lawsuit. It should not. Tort law has an important place, and constitutional liability must have limits.
But what happens when every available remedy has its own escape hatch?
Qualified immunity can protect individual officials when the constitutional right was not clearly established. Municipal-liability rules impose additional requirements. Sovereign immunity can restrict tort claims. Government can distribute responsibility among officials, agencies, and private contractors.
The constitutional claim made by the people of Jackson failed because the asserted right was not sufficiently established in the Constitution. And because the alleged constitutional violation was not clearly established, the individual officials were also protected by qualified immunity.
Think about the absurdity of that for a moment.
The government allegedly knew people were being exposed to dangerous water. The citizens say they were harmed. They go to court. And part of the answer becomes: was there already a clearly established constitutional rule telling government that this particular way of harming people was unconstitutional?
As if government officials need a judicially approved checklist before they are expected not to poison the people they govern.
The municipality has its own requirements for liability. The constitutional claim fails. The individual officials have immunity. The remaining dispute is pushed toward tort law.
The legal equivalent of: “Nope, Mom, he did it.” “No, she did.” “He did it.”
That is not necessarily legal immunity in the literal sense.
But it is a hell of a system for making accountability somebody else’s problem.
DeShaney
DeShaney v. Winnebago County tells us that government generally has no constitutional obligation to protect people from dangers it did not create. But creating or substantially increasing a danger is different from failing to prevent one.
If government controls the water system, knows of a serious danger, makes decisions that allegedly worsen it, and tells residents that their water is safe, government is not merely failing to protect them.
It is part of the chain that brought the danger to them.
The earlier Fifth Circuit panel recognized that distinction. The en banc court ultimately did not accept the constitutional theory.
And this is where Rochin v. California matters.
The Supreme Court did not need a nineteenth-century rule against stomach pumping to recognize that government had violated a person’s bodily integrity. The technology was not the principle.
The person was the principle.
There was no modern municipal water system when the Fourteenth Amendment was adopted. That does not mean constitutional liberty vanished when technology changed.
If government can reach the human body through modern infrastructure, the Constitution must be capable of reaching the government through that infrastructure.
Otherwise, constitutional liberty becomes a technological loophole, and technological progress begins producing something that looks suspiciously like societal regress.
And Americans have had enough of that.
We live in a country where ordinary people are increasingly asked to trust institutions that can make enormous mistakes, hide behind layers of bureaucracy, invoke immunity, outsource responsibility, and then tell the people affected to pursue some other remedy.
Now we have to fight for water too?
The people of Jackson allegedly had contaminated water. They went to court as citizens are told to do. They asked the legal system to make someone answer for what happened.
And after all of that, the question becomes whether the Constitution happened to recognize their particular injury in sufficiently historical terms.
At some point, the legal technicalities begin to obscure the thing sitting directly in front of us:
People are trying to live here.
They are trying to work. Raise families. Follow the law. Pay taxes. Trust their institutions. Take some measure of pride in their country.
And when those people are harmed by the institutions they trusted, they should not have to become constitutional scholars, civil-rights litigators, campaign strategists, and expert witnesses simply to find out who is responsible.
Government should exist to serve the people who authorize it.
Yet it can begin to look like something else entirely: a system for distributing responsibility until nobody can be held responsible.
If Americans cannot expect clean water and honest, competent administration from their government, what exactly are they entitled to expect?
The most infuriating part of Sterling is that Judge Engelhardt’s proposed alternatives are, at least in theory, perfectly ordinary democratic remedies. He wrote that the plaintiffs could pursue tort claims, “elect representatives who will better manage the public-water system,” and “petition their state and federal legislatures for other remedies.”
Fine.
Let us take those alternatives seriously.
How does a family of ordinary means pursue a years-long tort case against institutions with vastly greater resources?
How does the public petition representatives it believes have already failed it?
And how does the public simply elect better representatives when political influence itself is so heavily shaped by private money?
Citizens United did not create every form of dark money, nor did it permit unlimited direct contributions to candidates. But it did remove restrictions on independent political expenditures by corporations and unions, and the campaign-finance system that followed has allowed enormous sums to flow through outside organizations without the public necessarily knowing the original source of that money.
So the citizen is told to elect better representatives.
With what voice?
With what money?
With what access?
And then the citizen is told to petition those representatives.
How many times must the public petition a government before the government’s failure to listen becomes part of the problem?
The answer cannot be that elections exist, therefore political accountability exists.
The answer cannot be that tort law exists, therefore meaningful legal recourse exists.
A remedy written into law is not necessarily a remedy an ordinary citizen can realistically afford to pursue. A representative chosen through an election is not necessarily a representative whose incentives are aligned with the people who lack the money to compete with powerful private interests.
These alternatives may be legally available.
But available is not the same as accessible, and accessible is not the same as accountable.
That is the problem Sterling leaves behind.
When citizens must fight through a maze simply to make their government answer for serious harm allegedly caused by its own power, the question is no longer merely what remedy the law provides.
It is a more fundamental question:
Who is government really serving?