Five rescue workers who responded to the September 11th attacks at the World Trade Center, and who brought action against Christine Whitman (then the head of the Environmental Protection Agency) have had the dismissal of their case affirmed.
The suit had alleged that various public officials had issued reassuring — and knowingly false — announcements about the air quality in lower Manhattan; that the plaintiffs therefore believed it was safe to work at the site without needed respiratory protection, and did; and that the defendants’ conduct violated plaintiffs’ right to substantive due process.
The appeals court affirmed the dismissal of the case because the complaint’s allegations did not “shock the conscience even if the defendants acted with deliberate indifference.” The court, moreover, said that when agency officials decided how to reconcile competing governmental obligations in the face of disaster, only an intent to cause harm arbitrarily can shock the conscience in a way that justifies constitutional liability.
The ruling by the Second Circuit Court of Appeals was issued late last week, and is available at the Second Circuit website (Lombardi v. Whitman).