Hypothermia victim’s lawyer mulls SCOTUS appeal

By Kevin Featherly
kfeatherly@minnlawyer.com

An attorney in the case of a University of Minnesota student who froze to death in 2013 may file for a writ of certiorari now that the 8th Circuit U.S. Court of Appeals has rejected his client’s due process claim.

If Minneapolis attorney Robert R. “Randy” Hopper does petition for cert with the U.S. Supreme Court—and he says he is leaning that way with the family’s blessing—he would reject what amounts to free legal advice from both a U.S. District Court judge and the 8th Circuit about an alternative claim.

William Anderson, trustee for his late son Jacob Anderson, 19, maintains that Minneapolis first responders and other emergency workers failed to take mandatory action to save Jacob’s life. And because they are “state actors,” Hopper said, their malfeasance rises above common tort law to violate the U.S. Constitution’s 14th Amendment.

Both courts agreed that medical guidelines were not followed in the case. But they rejected the family’s constitutional argument.

“There is no reason to think that medical guidelines for first responders enshrine duties arising out of the 14th Amendment,” 8th Circuit Judge Jonathan A. Kobes wrote in his panel’s unanimous Aug. 20 opinion.

Both courts also suggested that a valid negligence claim might arise from the U of M freshman’s death. U.S. District Court Judge Susan Richard Nelson, in her 2018 ruling, went so far as to suggest it might have been a case of gross negligence.

But Hopper rejects the suggestion. His constitutional claim is “an exceedingly important national lawsuit,” he said, and he has high-powered constitutional scholar and Berkeley Law School Dean Erwin Chemerinsky—Hopper’s appellate co-counsel in the case—to back him up on that.

“Both of those courts are wrong in their perception of what the case is,” Hopper said Wednesday. “This clearly falls into the domain of a constitutional tort case.”

Civil rights

Constitutional tort claims are federal civil rights actions filed against government employees under 42 U.S. C. Section 1983 to seek damages under the Bill of Rights and 14th Amendment.

Hopper maintains that the first responders, police and medical examiners who showed up on Dec. 15, 2013, all violated Jacob Anderson’s 14th Amendment right to life by failing to immediately warm his body—something Hopper said medical protocols command.

Instead, according to Hopper and both court decisions, first responders from the Minneapolis Fire Department—several of whom were certified emergency medical technicians—merely checked for a pulse in Anderson’s frozen arm. They did that for as little as 30 seconds, according to one witness.

About four minutes after they responded to a 911 call to find Anderson slumped over a metal rail on a remote riverbank near the U of M campus, the student was declared dead.

A fire department incident report says Anderson "had no pulse and no breathing and was frozen, indicating obvious death."

Paramedics arriving shortly afterward also took no further medical action, according to court records. Nor did responding police officers or two death investigators from the county Medical Examiner’s office.

For Hopper, the medical examiners’ lack of response is particularly galling because, as trained forensic pathologists, they should have demanded that Anderson’s body be immediately warmed.

Instead he was declared dead at 8:57 a.m. For Hopper, that timing is near definitive proof that he was alive when emergency crews found him. His evidence for that is a text message that he says came from the 19-year-old’s phone at around 2 a.m., just six hours before he was located.

Hopper said his medical expert, Paul Costello—an emergency medical technician who trains crews to deal with hypothermia cases—has offered testimony that death from freezing in a healthy young man would take longer than six hours.

That’s because of anomalies in the human body’s response to freezing temperatures, Hopper said. A hypothermia victim’s brain and heart demand less oxygen, so the body can sustain life sometimes for hours—even if it shows no outward signs of respiration or a pulse, the lawyer said.

“You’re preserved by the cold,” Hopper said.

In one famous case, a Norwegian woman named Anna Bågenholm was caught in an avalanche and survived for 17 hours with a core body temperature of 56 degrees Fahrenheit. “[Jacob’s] wasn’t even nearly close to that,” Hopper said.

By ignoring well-known protocols and letting the freshman die, Hopper said, government workers violated local, state and federal law. That, in turn, violates the 14th Amendment.

“They knew exactly what the pathophysiology of hypothermia is because they studied it,” Hopper said. “They had to become knowledgeable of it in order to become licensed. And these are licensed professionals.”

Asked why he believes emergency responders—whose job it is to save lives every day—would cavalierly allow a young man to die in the cold if they suspected he was alive, Hopper had no answer.

“I don’t know,” he said. “That’s the mystery.”

Due process clause

Anderson’s U.S. District Court complaint sued the various individual emergency workers, police and medical examiners who responded that day, plus the City of Minneapolis and Hennepin County.

Nelson filed her ruling on March 30, 2018, dismissing the entire action with prejudice. She partly based her decision on the U.S. Supreme Court’s 1988 ruling in DeShaney v. Winnebago County Department of Social Services.

There, the Rehnquist court ruled that the Constitution’s Due Process Clause is framed as a restriction on the state’s power to act. It therefore confers no general affirmative right to government aid, “even where such aid may be necessary to secure life, liberty or property interests of which the government itself may not deprive the individual.”

The only exceptions, Nelson wrote, apply when someone is in government custody or when the state’s own action “creates or amplifies the danger to which an individual is exposed.” Contrary to the family’s claims, Nelson ruled, neither condition applies in Anderson’s case.

She also ruled the emergency responders are entitled to qualified immunity because the claim failed to state a due process violation. But Nelson’s ruling acknowledges that Anderson might have been alive when he was declared dead.

“Almost certainly, plaintiff has stated a claim for negligence, or even gross negligence,” she ruled. “But complainant fails to plausibly allege a substantive due process violation.”

On appeal, the 8th Circuit panel agreed—though it wasn’t quite as emphatic about the negligence claim. “That the medical guidelines were not followed here could possibly be the basis for a negligence suit,” Kobe wrote. “But it is not the basis for a constitutional one.”

Minneapolis City Attorney Susan Segal called the case tragic and offered sympathies to the Andersons. “Winning or losing in court does nothing to help bring this young man back to his family,” she said.

She wouldn’t discuss the merits of the case. But Segal did say that the city’s police and fire departments have long worked with emergency medical experts to ensure that their policies and training are in line with best practices.

“City staff are trained to go out and save lives,” she said. “That’s what they want to do. And that is what they would call a win.”

Hopper is having none of it.

When Anderson died, the lawyer said, his body lay just five minutes’ distance from the Hennepin County Medical Center, a facility well equipped to rescue a hypothermia victim.

What happened to him is not just a legal, but a moral failure, Hopper said. And those responsible for it, he said, should be held to account under domain of the U.S. Constitution.

“Could they not have at least cared enough—as a human being for another human—to have taken him over and at least tried to warm him up?” the lawyer said. “That is so morally vacuous.”