Ground Zero on September 23, 2001.

The Second Circuit yesterday affirmed dismissal of claims that the federal government deliberately misrepresented the safety of working at Ground Zero without respiratory equipment.  The five plaintiffs performed search and rescue operations after the 911 attacks.  They alleged that exposure to asbestos and other hazardous substances injured them or put them in reasonable fear of harm.  The government’s false statements exhibited deliberate indifference to their health and safety, they asserted, and constituted violation of their substantive due process rights under the Constitution.  Lombardi v. Whitman, No. 06-1077 (2d Cir. Apr. 19, 2007) (available at

The court of appeals applied a "shock the conscience" standard to the complaint.  The government’s conduct didn’t shock the "contemporary conscience" because, the court ruled, the Environmental Protection Agency director and other officials sought to "avoid panic, keep order, restore services, repair infrastructure, and preserve the economy" during a time of profound uncertainty and upheaval.  That the officials could have protected these selfless people by providing them with respiratory equipment (or even telling them they needed it) didn’t alter the court’s conclusion.

Does the government’s behavior shock you?  It does Blawgletter.  Instead of knowingly and falsely assuring brave men and women that the air at Ground Zero wouldn’t harm them, the EPA director could easily have told them the truth.  Blawgletter cannot imagine that knowledge of the truth would have diminished one whit the responders’ devotion to their patriotic duty.  The needless heaping of tragedy upon tragedy goes beyond stupidity.  It indeed shocks the conscience.

Let us hope the government finds another way to take care of these intrepid souls.

Barry Barnett

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