The Sixth Circuit denied Flint, Michigan’s petition for en banc review of a panel decision allowing citizens exposed to contaminated water to sue city and state officials. The order drew two concurrences, one dissent, and plenty of skepticism about the plaintiffs’ case—which is nevertheless allowed to proceed in the district court.

The plaintiffs’ theory is that city and state officials either ham-fistedly or intentionally (the distinction is important) poisoned Flint’s water supply—in violation of the Due Process Clause of the Fourteenth Amendment. In January, a partially divided Sixth Circuit panel (Griffin, White; McKeague dissenting in part) held the case—Guertin v. Michigan—could go forward, despite the officials’ assertion of qualified immunity.

The full court voted against rehearing en banc, sending the case down in accordance with the panel opinion. But not before three separate opinions offered full-throated arguments about the difficulty plaintiffs will have proving their case, the perils of “substantive” due process claims, and the wisdom of the appellate court’s intervention at this stage of the proceedings.

Judge Gibbons, joined by Judge Stranch, concurred. Evaluating a constitutional violation so early in the case, they contended, outstripped the court’s mandate. “Our job is, and only is, to determine whether any possible allegation plausibly states a claim under which relief can be granted. To decide any other issue would be judicial overreach . . . an advisory opinion.”

Judge Sutton, joined by Judge Bush, also concurred—though more skeptically. “Carefully tailored and prompt discovery should answer whether the intentional and reckless poisoning allegations hold up.” But the concurrence ticked through no fewer than five reasons for caution. The law does “not lightly allow citizens to tap private pockets or the public treasury” by suing publicly selected officials. This is especially true for claims of substantive due process, which lies at “the outer edges of judicial competence.”

The shock-the-conscience test for violations of bodily integrity exists “to restrain judges, not empower them; to remove claims from the constitutional arena, not to expand nebulous notions of substantive due process.” As one might expect from a foremost advocate of state constitutional law, Judge Sutton also noted the plaintiffs’ pursuit of parallel relief in state court under the state due process clause—a path that might avoid some of the federalism and separation-of-powers hazards concerning many at the Sixth Circuit.

The dissent, penned by Judge Kethledge and joined by four more, took a “crowbar” to the complaint. Specifically its reliance on qualified immunity, substantive due process, and the “bodily integrity” theory of liability. “Just as crowbars are not made out of tin, substantive due process’s easy malleability makes it a notably poor instrument for prying away an officer’s qualified immunity.” The majority’s denial of immunity was “barely colorable” according to Kethledge and four of the court’s newest judges (Thapar, Larsen, Nalbandian, and Murphy; Reader recused).

The “right to bodily integrity,” the dissent continued, is too “shapeless” and “unknowable” for a reasonable official to know “that his conduct would violate” it. And no constitutional violation can follow from a complaint sounding in negligence. (“Defendants violated Plaintiffs’ rights to bodily integrity” by failing “to protect Plaintiffs from a foreseeable risk of harm.”) Otherwise, Judge Kethledge surmised, a putative right to be free of unwanted substances would be violated “every time that virtually any of us takes a breath.” But for now, at least, the plaintiffs likely will have a chance to prove a constitutional violation in the district court.