Delayed Missing Person’s Report Can’t Sustain Suit

(CN) - A trooper who failed to file a timely missing person's report need not face claims over the missing man's subsequent suicide, a federal judge ruled.

Sean Buerhle, a Drexel University student living with his mother, Kathy, and stepfather in Philadelphia, never arrived at work or returned home after heading out for the midnight shift at Weis Supermarket on Aug. 8, 2011, according to the ruling.

When Sean did not answer his cellphone the next day, and his friends said they had not seen him, his stepfather contacted the state police.

Kathy claimed in a federal complaint that she informed the Pennsylvania State Police of Sean's anxiety and panic attacks, his family history of depression and suicide, and that his antidepressant, Cymbalta, was missing.

Trooper Hahn and Trooper John Doe, whose full names are not mentioned in the ruling, allegedly refused to ping Sean's cellphone to pinpoint his last known location.

Kathy said they nevertheless provided her with a case number and implied that they had filed a missing person's report.

When Kathy went to obtain a copy of her son's missing person report to notify local media two days later, however, she allegedly found no information related to that case number. She said a trooper then interviewed her and filed a missing person's report.

Around 11:30 the next evening, state troopers notified Kathy that they had pinged her son's phone and found his body in the woods with a suicide note, according to her complaint.

The coroner's autopsy allegedly showed that Sean killed himself sometime between the night of Aug. 11 and the wee hours of Aug. 12 - about three days after he left home.

In her complaint, Sean's mother claimed that police protocol required the troopers to file a missing person's report or issue alert on the missing endangered person advisory system (MEPAS) when Sean first went missing.

The complaint asserts a claim for due process deprivation under the 14th Amendment, as well as state-law wrongful death and survival claims.

U.S. District Judge Anita Brody dismissed the claims against Hahn after finding that his alleged handling of the case did not affirmatively render Sean more vulnerable to danger.

"As tragic as the facts of this case may be, I am required under the law to grant Trooper Hahn's motion to dismiss," the Jan. 14 ruling states.

Ultimately there is no allegation that he "acted affirmatively to create a risk of danger that would otherwise not have existed," a required element to prevail on a substantive due process claim under the state-created danger theory.

"Buerhle cannot meet the fourth element of the state-created danger test because the troopers did not take any affirmative acts nor were their alleged 'actions' the '"but for cause" of the danger faced by [Sean],'" Brody wrote. "While the troopers may have failed to prevent Sean's death, they did not cause or increase the risk that he would commit suicide."

Kathy failed to show that the troopers' assurances caused her to refrain from actively searching for her son.

"The troopers never restricted Buerhle's ability to search for Sean," Brody wrote. "In fact, Buerhle continued to search for Sean after she spoke with the troopers by checking Sean's cellphone, bank, and computer records; contacting local hospitals; and posting numerous missing person signs."

As to Kathy's state-law claims, the court found that Hahn is entitled to sovereign immunity because all of his actions were within the scope of his employment.

"Even if Trooper Hahn failed to follow department procedure and/or office protocol when he refused to ping Sean's cellphone or request issuance of a MEPAS alert, the purpose of his investigation into Sean's disappearance was to serve the local state police department, and these unauthorized acts were incidental to that purpose," Brody wrote. "Additionally, when Trooper Hahn spoke with Buerhle he did so at the behest of the local state police department. Thus, when he provided Buerhle with a case number for a nonexistent case, he was still acting within the scope of his employment."

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