Jon Campisi Jan. 16, 2014, 5:11pm


A judge has dismissed a federal civil rights and wrongful death claim

against a Pennsylvania state trooper in a case initiated by the mother of a suicide victim.

U.S. District Judge Anita Brody, sitting in the Eastern District of Pennsylvania, tossed a substantive due process claim and two counts of state law violations against the law enforcement officer, identified in court papers only as Trooper Hahn, because, while the trooper and his partner may have failed to prevent the death of Sean Buerhle, they did not “cause or increase the risk that he would commit suicide.”

“As tragic as the facts of this case may be, I am required under the law to grant Trooper Hahn’s motion to dismiss,” Brody wrote in her Jan. 14 memorandum.

The mother of 22-year-old Sean Buerhle, Kathy J. Buerhle, filed suit against Hahn, his partner, identified only as John Doe, and the Pennsylvania State Police over the death of her child back in the summer of 2011.

The plaintiff, administratrix of her late son’s estate, alleged a deprivation of substantive due process under the Fourteenth Amendment, as well as a state law wrongful death claim.

Records show that Sean Buerhle, who had a history of mental health issues, including anxiety and debilitating panic attacks, took his own life in mid-August 2011.

His body was discovered along with a suicide note at about 11:30 p.m. of that year in the woods near his home.

Members of a search team had notified the plaintiff that they located Sean’s body after “pinging” his cellphone to ascertain his last known location and then using K-9 units to determine exactly where his body was.

The Montgomery County Coroner’s Office ultimately concluded that Sean had died sometime between the night of Aug. 11 and the early morning of Aug. 12.

In her lawsuit, Kathy Buerhle pointed out that while the Pennsylvania State Police has a protocol known as the Missing Endangered Person Advisory System, which quickly disseminates information about a missing person to the public and other law enforcement agencies, the state troopers failed to request the issuance of a MEPAS alert, and failed to file a missing person’s report, in Sean’s case.

Buerhle contacted law enforcement on Aug. 9, 2011, to report her son’s disappearance.

The young man had left home on Aug. 8 to go to work the midnight shift at a local supermarket, although the mother soon learned her son had never showed up to his job, the complaint stated.

Upon arrival at the family home on Aug. 9, the record shows, Hahn and his trooper partner were made aware of Sean’s history of mental illness, his family history of depression – both his father and a cousin had killed themselves – and the fact that Sean’s entire bottle of prescription Cymbalta was missing.

Despite this information, the troopers refused to “ping” Sean’s cellphone, a method whereby a cellphone service provider can pinpoint a subscriber’s last known location by determining the closest cell tower that was accessed by the person’s mobile phone.

The two troopers provided Kathy Buerhle with a case number for her records, although the plaintiff later found out an official report was not taken, and when she went to the police station two days later to obtain a copy of the missing person’s report to distribute to local media, she learned no such report existed, according to the lawsuit.

Another trooper at the station subsequently interviewed Buerhle and took a missing person’s report.

Troopers went to the Buerhle home on the morning of Aug. 12 to search Sean’s room and create a search team to look for the young man.

It was that night that Sean’s body was discovered in the nearby woods.

To state a Section 1983 claim, Judge Brody wrote, a plaintiff must allege a deprivation of a constitutional right and that the deprivation was caused by an individual acting under the color of state law.

Trooper Hahn subsequently filed a motion to dismiss, arguing that Buerhle’s complaint failed to allege a constitutional deprivation.

Hahn argued that the plaintiff failed to establish three elements of the state-created danger theory: that the harm ultimately caused was foreseeable and fairly direct, that a state actor acted with a degree of culpability that shocks the conscience, and that a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all.

Brody, who noted that the plaintiff’s claim could not proceed if she failed to establish a single element in the test, wrote that Buerhle cannot establish the fourth element, the requirement of an affirmative act, so her entire claim could not move forward.

The fourth element in the state-created danger theory is the third one listed above.

Brody determined that the troopers’ refusal to ping Sean’s cellphone and failure to request the issuance of a MEPAS alert are “failures to act that cannot be recast as affirmative acts that rendered Sean more vulnerable to danger.”

“Likewise,” Brody wrote, “the Troopers’ assurance that they would actively search for Sean and file a missing person’s report also does not amount to an affirmative act.”

Buerhle had argued that the troopers rendered Sean more vulnerable to harm by giving her a case number and assuring her they would look for her son because their assurances “caused her to refrain from actively searching for Sean,” Brody’s memorandum notes.

The troopers, however, never restricted Buerhle’s ability to search for her son, the judge wrote.

“The Troopers’ assurances did not make Sean more vulnerable to harm because they did not prevent Buerhle or anyone else from helping Sean,” Brody wrote in her memorandum.

Hahn also argued that the state law wrongful death and survival claims should be tossed because, as an employee of the commonwealth, he is entitled to sovereign immunity.

Buerhle counter-argued that Hahn was not entitled to sovereign immunity since he is being sued in his individual capacity, and that the trooper’s actions were outside the scope of his employment when he failed to properly follow department procedure and/or protocol in failing to timely file a missing person’s report and request the issuance of a MEPAS alert.

Brody ended up ruling that Hahn is indeed entitled to statutory sovereign immunity since his conduct was within the scope of his employment.

Brody dismissed all claims against Hahn.

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