If you want to know more about “involuntary manslaughter” charges that investigators are discussing in Flint, then read on.  This post doesn’t present all of the evidence that could support criminal charges, or try to prove someone guilty of a crime.  But it does tell you what involuntary manslaughter actually means, and highlights some important findings from a recent Task Force report.  It also identifies a few things standing in the way of criminal charges.

The attorney investigating the water crisis in Flint announced in February that he would consider involuntary manslaughter charges against anyone who was grossly negligent in handling an outbreak of Legionnaires’ disease that sickened 87 people over a 17 month period, and has so far killed 11.

Legionnaires’ causes flu-like symptoms, and can be deadly to people with suppressed immune symptoms. It spreads when bacteria in water vapor is inhaled from things like shower-heads or air-conditioners. In April 2014, the state switched Flint’s water supply from Lake Huron to the Flint River, without the addition of anti-corrosive treatment that would have controlled lead contamination and the growth of deadly bacteria.  As of February, 2016, the city’s water supply still has not been tested for the bacteria that causes Legionnaires’.

The Flint Water Advisory Task Force has since released a 116 page report describing critical “failures” and “misjudgments” in how the water crisis was handled at all levels of government, but particularly the state, including delays and obstruction in the response to the Legionnaires’ outbreak.  The Report details who-knew-what-when, and will be central to the criminal investigation.

Involuntary Manslaughter – What Is That Anyway?

Unlike murder, which happens when someone is killed intentionally, involuntary manslaughter involves an accidental death resulting from “gross negligence.” When a lawyer says that someone was killed without “criminal intent” or “malice aforethought,” they’re talking about the accidental, or unintentional, aspect of involuntary manslaughter.

Under the law in Michigan, “gross negligence” is more than carelessness; it is a “willful disregard” of danger that could result from someone’s actions.  When making decisions or going about our day, we have a duty to exercise “ordinary care” to avoid harming someone else.  A person who breaches that duty beyond carelessness, is “grossly negligent.”

Moreover, someone can be grossly negligent by their “action” or their “inaction.” Think of a construction worker who fails to secure a crane that falls over and kills a pedestrian, or a life guard who ignores a distressed swimmer. Though a bystander isn’t required to intervene in these situations, a construction worker or life-guard has a legal “duty to act.” In Michigan, someone who “willfully neglects or refuses” to perform a legal duty could be “grossly negligent,” and therefore guilty of involuntary manslaughter. This will be especially relevant to government officials in Flint who had a duty to report or act on potential water dangers.

Finally, gross negligence covers situations someone actually knew was seriously dangerous, as well as things a reasonable person should have known was dangerous.  My Criminal Law Prof described this as the “any damn fool knows” test: “running a drag race on a crowded playground is a terrible idea,” he’d say.  “Any damn fool knows that someone could be killed, even if you couldn’t figure it out.” Another example: “hand a child a loaded gun and you could be convicted of involuntary manslaughter when a tragedy unfolds, because ANY DAMN FOOL KNOWS YOU DON’T DO THAT!”  The investigation in Flint will focus not only on what certain individuals knew, but what they should have known.

The Flint Water Advisory Task Force Report

The Task Force consisted of five government appointed experts who conducted an “independent review” of the water crisis to find out “what happened, why it occurred and what is needed to prevent a recurrence in Flint or elsewhere in the state.”  It released a final Report in March.

Scathing, damning, and unrelenting, are words to describe the Report.  It cites “intransigent disregard of compelling evidence of water quality problems and associated health effects.” It identifies “callous and dismissive responses to citizens’ expressed concerns,” and “persistent delays” in coordinating a response, even after “irrefutable evidence of exposure and poisoning was presented.” It emphasized the disproportionate impact on Flint’s Black and African-American residents who “did not enjoy the same degree of protection from environmental and health hazards as that provided to other communities,” and who were not “provided equal access to, and meaningful involvement in, the government decision-making process.”

Here are some additional findings:

  • state agencies failed to effectively enforce drinking water regulations or “promptly act” to protect the overall public health;
  • state agents “stubbornly worked to discredit and dismiss others’ attempts” to address the Legionnaires’ outbreak;
  • public officials “failed to move swiftly to investigate” the source of the outbreak;
  • emergency managers may have contributed to the outbreak by failing to timely notify the public and urge caution;
  • the Governor delayed efforts to “reverse poor decisions” despite “mounting problems and [urging] by senior staff members,” in part because state agents said the water was safe.

This Report collected and pieced together facts that criminal investigators could use to prove gross negligence.  Plus, it was based on voluntary interviews and publicly available emails and evaluations – sources of evidence that prosecutors might use to build a case.  Perhaps more importantly, the Report could hint towards additional information that is not publicly available –information a prosecutor could uncover using the power to subpoena witnesses and documents.

But it’s not an open-and-shut case. Some of what the Report uncovered, though damning in the court of public opinion, might not rise to the level of “gross negligence” under the law, or establish “guilt beyond a reasonable doubt” at a trial.  Rules of evidence might prevent some facts from being admitted in court.  The Report is a giant leap forward in a criminal investigation, but it is not the end of the road.

A Couple More Roadblocks

Here are a couple more things to consider. First, even if public officials were grossly negligent in handing the crisis, a case won’t go forward unless the bacteria causing Legionnaires’ was actually in the water, and is the reason someone died. This would establish what lawyers refer to as a “causal link” between the action and the outcome – that is, someone’s failure to properly address the outbreak (the action) and another person contracting and dying from the disease (the outcome).  Looked at another way, even if government agents were “grossly negligent” in failing to act on the warnings, no-one died from that negligence if the disease can’t be traced back to the water sources or delivery system in Flint.

To date, the governor and state agents insist that Legionnaires’ cannot be clearly linked to the water in Flint, in part because only about half of the people who contracted the disease were exposed to it. But samples taken in 2015 revealed the bacteria was present in some large-scale buildings, and experts have demonstrated how the bacteria thrives in water as corrosive as Flint’s.  Was it present in the healthcare facilities where patients were treated for Legionnaires or died from the disease?  Yes, at least according to a recently filed law suit.  But that just raises an additional question about where the bacteria came from, and whether hospital personnel might be responsible for it spreading there.  The original source of the bacteria is still officially being investigated.

Second, the doctrine of “qualified immunity” sometimes protects public officials from being sued for decisions related to their official duties. In Michigan, the qualified immunity statute applies to civil suits, not criminal actions, which means that certain public officials couldn’t be sued for “wrongful death” by someone who lost a loved one to Legionnaires’ disease.  The statute does not expressly cover “criminal actions,” so it would not immunize a government agent from being charged with involuntary manslaughter.

Does some other aspect of immunity apply to government officials in Michigan – I’m not sure (Crim Law folks invited to comment!). But my hunch is that the special prosecutor wouldn’t be floating the idea of criminal charges if they were legally impossible to bring.

Finally, the biggest obstacle to prosecution might not be law – but politics. Even when the evidence is stacked in their favor, a prosecutor might decline to file charges for a host of reasons. Will criminal prosecution have a chilling effect on people who are left to clean up the mess, or will it show them it’s better to play it safe than be sorry?  Does the financial cost to taxpayers outweigh a potential remedy – in either monetary or emotional terms?  Do prosecutors have anything to gain or lose by filing charges, or by winning or losing in court?  I can’t answer these questions, but they are what prosecutors and the public should keep in mind as criminal investigations continue.

-Kathleen Bergin