Criminal Charges Have Been Dropped Against Officials in Flint. What Comes Next?

Five years after it first became public, the Flint water crisis is still ongoing. Though public health officials have officially declared the water safe to drink, many residents are justifiably skeptical, and continue to use bottled water for cooking, cleaning, and drinking.

A passionate group of city residents have pushed for years to hold public officials accountable for what they say was willful neglect of a public health emergency and an intentional campaign to hide the truth from residents. Last week, they received news that has caused some community members to question if justice will ever come.

In a joint statement, Michigan Solicitor General Fadwa Hammoud and Wayne County Prosecutor Kym Worthy, who are leading the state’s effort to criminally prosecute public officials involved in the crisis, announced that they were dismissing the pending charges against eight defendants. “Upon assuming responsibility of this case, our team of career prosecutors and investigators had immediate and grave concerns about the investigative approach and legal theories embraced by the [former team], particularly regarding the pursuit of evidence,” the statement reads.

The leadership changes at the head of the prosecutorial team came after the election of the new Democratic Attorney General, Dana Nessel, who succeeded Bill Schuette, a Republican, in January. On the campaign trail, Nessel promised to change the course of the investigation, which has cost over $20 million already, and recently fired the former special prosecutor, Todd Flood, for failing to review thousands of documents.

Hammoud also made headlines this month for requesting electronic records from former Republican Gov. Rick Snyder, leading some to believe that he may also face charges soon. Snyder maintains that he already handed over records at the end of his term.

Community members have had mixed reactions to the dismissal of the cases, which included charges of involuntary manslaughter against five former state and local officials. Fifteen officials were originally charged, but seven took plea deals for misdemeanors.

Flint Mayor Karen Weaver issued a statement saying that she is satisfied that the case is now being handed with the “seriousness and dogged determination that it should have been handled with from the beginning.” In contrast, Nayyirah Shariff, the director of the group Flint Rising, told the Detroit Free Press that the move felt like "a slap in the face to Flint residents” and that she does not know what to do about the “bungled” investigation. "I'm very disappointed with Dana Nessel's office because she ran on a platform that she was going to provide justice for Flint residents, and it doesn't seem like justice is coming,” she said.

But Lance Gable, an associate professor of law at Wayne State University, said residents shouldn’t assume the case is just done. “Things are very much in flux right now. The new team has quite a lot of experience as prosecutors, more so than the old team,” he said. “They initially asked for a six-month delay to assess the case, but then a month later, they dropped the charges because they were concerned about the structure of the case and the evidence to support some of the more aggressive charges, like involuntary manslaughter.”

The crisis began in 2014, when Flint’s water source was switched from Lake Huron and the Detroit River to the Flint River. The water was not treated sufficiently, and lead pipes introduced contaminants that exposed over 100,000 people to serious health conditions. Children in Flint were found to have elevated blood lead levels, and a federal state of emergency was declared in January 2016. That same month, 87 cases of Legionnaires’ disease, which is waterborne, were reported, resulting in 12 deaths.

If Hammoud and Worthy decide to refile charges in the case, the public health officials and emergency managers involved may end up facing the same, less severe, or more aggressive charges. Those criminal cases are separate from two other legal processes in Flint: one in which the state and individual public officials are being sued in civil court by residents through a class-action lawsuit, and one in which the state is suing private companies that managed the water plant.

Because there are conflicting interests, the Attorney General’s office is supposed to be segmented, with Nessel defending the state in the class-action civil case, while Hammoud and Worthy prosecute state officials in the criminal case, but there has been some concern that the firewall hasn’t been strong enough. All attorneys are working from the same underlying investigative sources, Gable said, but they shouldn’t share legal strategies or arguments.

The particular case of the state prosecuting individual public officials in criminal court for negligence is unusual. “Something unique in this case is that most of the time when civil officials are prosecuted under criminal law, it is for corruption charges,” Gable said. “This is a very different situation. Officials here made decisions that exposed the population to risk of harm.”

If charges are reinstated, Gable said that this might be the first time that this kind of criminal case proceeds against civil officials in the U.S. For reference, he cited an 2016 Italian case in which eight government officials was prosecuted for not warning the public about an impending earthquake that killed 309 people. Only one of them served time in prison on a manslaughter charge, but the cases made their way to the Italian Supreme Court and stirred international interest into the prosecution of public servants who fail to do their jobs.

The question of criminally prosecuting public officials also arose this month in the case of Scot Peterson, a deputy who faces 11 charges, including child neglect, for failing to intervene during the 2018 Parkland school shooting. Legal experts have said that proving negligence in that case will be an uphill battle.

Gable said that the bar for proving serious charges, like involuntary manslaughter, is justifiably high, and “we risk going down a dangerous path when we bring criminal charges against officials who don’t live up to our expectations” because people may not be willing to take jobs with great public import due to fear of liability, and because it opens up situations where politicians might prosecute their opponents. But that situation, he noted, is very different from people who recklessly endanger others’ lives. “Flint might be one of those cases,” he said. “If they can prove that state officials didn’t reveal a Legionnaires’ disease outbreak because they were worried about bad press, for example, then criminal charges might be warranted.”

Nessel’s office now plans to hold a “community conversation” with Flint residents on June 28, and said that they will not speak to reporters until after that meeting.

Gable said that scrutiny of the attorney general’s decisions and handling of the cases about past wrongs should be balanced with reforms that look to the future. “Putting people in jail would be satisfying, but that doesn’t actually fix the infrastructure problems that caused this crisis,” he said. “We shouldn’t pursue these cases to the exclusion of more forward-thinking efforts to support people who have been impacted, and to make sure that in the future, residents of Flint have clean water, good health, strong education, and are supported in all aspects of their lives.”