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Lombardi v. Whitman

ELR Citation: 37 ELR 20091
Nos. No. 06-1077, (2d Cir., 04/19/2007)

The Second Circuit upheld the dismissal of rescue, search, and cleanup workers' substantive due process complaint against federal officials for knowingly issuing false statements about air quality safety in the aftermath of the September 11, 2001, terrorist attacks of the World Trade Center. The workers did not allege that the officials acted with an evil intent to harm. Rather, they argued that the defendants acted with deliberate indifference. Yet even if the officials acted with deliberate indifference, the allegations do not shock the conscience. When agency officials decide how to reconcile competing governmental obligations in the face of disaster, only an intent to cause harm arbitrarily can shock the conscience such that a violation of substantive due process is triggered.