City seeks rehearing in class action suit regarding lead in the water

JACKSON, Miss. (WLBT) – Jackson is seeking a rehearing in a case alleging the city knowingly allowed people to drink water contaminated with lead.

On Monday, the city asked for a rehearing before the entire U.S. Fifth Circuit Court of Appeals, days after a three-member panel overturned a lower court’s ruling dismissing the matter.

The city argues that the rehearing is appropriate, saying the panel went against years of court precedent by allowing the suit to go forward under the “state-created danger doctrine.”

[READ: Fifth Circuit revives lawsuit alleging lead in Jackson water]

According to court records, the doctrine is the idea that the state can be held liable “when a state actor creates or exacerbates [a] danger.”

“The decision has significant consequences for thousands of state and local governments and their ability to provide public services,” the city wrote. “In 2016 alone, the city was one of over 5,300 municipalities found to have violated lead-testing rules.”

“The panel decision opens those municipalities to liability to over 18 million Americans for alleged constitutional violations.”

At the heart of the matter here is a 2022 class action lawsuit filed by four plaintiffs alleging the city knew the potential that the acidity of the city’s water could lead to led contamination but did nothing about it.

In 2024, Judge Kristi Johnson dismissed the claims against the city officials named in the suit, citing qualified immunity. She dismissed the suit later that month, after she said the plaintiffs failed to respond to a request for information on why the federal court had jurisdiction over the matter.

The Fifth affirmed Johnson’s decision to dismiss claims against the individual city officials named in the suit, but overturned her ruling to dismiss the case entirely, saying the case could move forward under the Due Process Clause.

The court also remanded the case back to the district court to assess whether the plaintiff’s allegations also could be a plausible state-created danger claim.

The city, however, argues the Fifth’s decision conflicts with a “long line of prior cases” where the Fifth rejected the state-created-danger claims.

“Some might reasonably contend … that if the theory is to be squarely engaged, its once-and-for-all adoption or rejection should come from the en banc court rather than a panel,” the city wrote.

Jackson also argues the state-created-danger doctrine “varies across circuits” and has not been adopted by the U.S.

“Each circuit has its own criteria. For example, the Second Circuit requires to two elements; the Third, four, and the Tenth, six,” the city writes. “Some circuits mandate conduct by a private actor, while others require plaintiffs to belong to an identifiable group.”

“The doctrine lacks a clear definition, and its application can be inconsistent and unpredictable.”

In the Fifth’s case, the city argues the court has not adopted the doctrine but rather has “formulated elements” for a state-created-danger claim. Those elements include defendants using their authority to create a dangerous environment for plaintiffs, and defendants acting with deliberate indifference to the “plight of the plaintiff.”

Plaintiffs in this case allege the city knew back in 2011 that the water system was at a high risk for lead contamination but did little about it.

Part of the problem was the failures of the lime treatment pump at the O.B. Curtis Water Treatment Plant.

In 2013, the late Mayor Chokwe Lumumba authorized Public Works to address the problem. However, his successor, Mayor Tony Yarber, scrapped the plans and instead decided to switch a portion of the city from well water to surface water.

The suit claims the surface water had a lower pH level, meaning it was more likely to corrode older lead pipes and fittings in residents’ homes.

Testing revealed that lead levels exceeded legal limits in 22 homes in June 2015.

See Jackson’s latest filing below.

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