Whether the burden of persuasion in qualified immunity cases should be on the plaintiff or the defendant

QUESTIONS PRESENTED The Fourteenth Amendment provides that the government may not deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. In this case, municipal employees responded to a 911 emergency call and found Jacob Anderson, who was suffering from hypothermia. Regulations and protocols command that emergency responders immediately take actions to warm victims of hypothermia. However, the responders summarily declared Jacob dead, in violation of hypothermia treatment protocols, preventing further aid and worsening his condition. Through these actions, the state actor emergency responders increased the danger to Jacob and deprived him of his constitutional right to life. In its holding in this case, the Eighth Circuit stated, “lilt is not clear, under DeShaney, how large a role the state must play in the creation of danger and in the creation of vulnerability before it assumes a corresponding duty to protect. It is clear, though, that at some point such actions do create such a duty.” App. 11. Not knowing that “point” at which the state assumes the duty, districts have increasingly swept state created danger cases into the qualified immunity category. Thus, the Circuits are intractably divided over what level of state action is required to meet the burden of state created danger and when qualified immunity should be granted. The questions presented in this case are: 1. Whether the burden of persuasion in qualified immunity cases should be, in part or entirely, on the plaintiff as held by the Eighth Circuit in this case li QUESTIONS PRESENTED—Continued and by the Fourth, Fifth, Sixth, Seventh, Tenth, and Eleventh Circuits, or whether it should be placed on the defendant, as held by the First, Second, Third, Ninth, and District of Columbia Circuits. 2. Whether, under the state created danger doctrine, due process is violated when first responders fail to provide any treatment to a person suffering from severe hypothermia, and instead, erroneously declare him dead. 3. Whether the Eighth Circuit erred in dismissing this state created danger case on qualified immunity grounds.