A former Gunnison woman’s excessive force lawsuit against a deputy saw partial dismissal Wednesday, when a U.S. District judge ruled there was insufficient evidence to support her claim of unlawful search.

The rest of Clare Ann Hein’s case against Gunnison County Sheriff’s Office Deputy Wesley Hersberger is for now slated for a five-day trial starting Aug. 2 — but U.S. District Judge William Martinez in his order urged the parties to try to reach a settlement before trial.

Hein filed suit in 2019 over her encounter with Hersberger in 2017. Hein, a cancer survivor who was then 71, alleged in federal filings that her Fourth Amendment protections against excessive force, unlawful arrest and unlawful search were violated.

She also sued the Gunnison County Sheriff’s Office, alleging the department had ratified Hersberger’s alleged conduct and had been willfully negligent in hiring and/or failing to train and supervise him.

The GCSO fought the suit and was dismissed from the action last year and with Wednesday’s order, Hersberger prevailed in his 2020 motion to have the unreasonable search claim dropped.

The suit arose from a 2017 incident in which Hein went to the Western Colorado University campus to complain about loud music coming from the athletic field. She first complained to people in the press box at the field and a person there called law enforcement.

Hersberger responded, as did officers from the Gunnison Police Department. (The GPD is not a party in the suit.)

Hein through her attorney’s filings said she approached the deputy to ask him if the school could play music as loud as it wanted during games, but that he was rude and so, frustrated, she asked for his ID, reaching her hand out, palm up and gesturing.

At that point, Hersberger allegedly grabbed her hand, twisted it and kicked her legs from beneath her, taking her to the ground, where he then allegedly pinned her, pushing her head into the dirt until she dropped the car key she was carrying.

Although Hein told officers her ID was in her wallet in her car, she also said they would need a warrant to search her vehicle, but both it and her purse were searched anyway, per her suit.

Hein in her filings alleged that as the result of the encounter with Hersberger, she sustained a concussion, yet received no aid until someone at the jail saw her picking dirt from her hair.

Although Hein was initially charged over the 2017 incident, local courts dismissed the case because the prosecution failed to disclose Hersberger’s 2009 conviction for misdemeanor assault. Hersberger was not working in law enforcement at the time of his conviction and he later received a waiver allowing him to become a peace officer.

Hersberger through his attorney pushed back againt the federal lawsuit, last summer filing a motion for partial summary judgment.

In these filings, he argued there was no basis to support Hein’s claim against him of unlawful search and seizure. The plaintiff, Hersberger’s filings say, testified that she didn’t know whether Hersberger had asked or encouraged other officers to search her car and she did not see those officers actually do so.

Hein’s attorney then countered, arguing there were ample facts for a jury to consider and conclude that Hersberger is the one who caused “an unreasonable search” of the car and purse to occur.

The response cited circumstantial evidence suggesting that the only way the officers could have known her purse was in her vehicle was if Hersberger had told them; “tantamount to encouraging them, or causing them, to take her keys, unlock the car and grab her purse” even if she did not see or hear Hersberger encouraging them to do so.

In reply, Hersberger’s attorneys reiterated there is no evidence that the deputy was part of the search, or that he had asked the other officers to conduct one, or that he had implied they should.

In his Wednesday order, Martinez found that, although it could be inferred the officers were told that the purse was in the car, it was only “speculation” that Hersberger must have also encouraged them to violate the Fourth Amendment.

“Critically, plaintiff did not observe or hear Hersberger encouraging (officers) to search plaintiff’s vehicle,” the order states, going on to quote from Hein’s deposition and from Hersberger’s.

The deputy testified that he had not directed the Gunnison police officers to search the car, nor seen them do so.

Hein did not raise facts that would suggest Hersberger had personally been involved in an unlawful search of her car, or that he had a duty to intervene in an unlawful search conducted by others, Martinez found.

Therefore, Hersberger was entitled to have the unlawful search claim dismissed.

Martinez added one “final observation” in his order.

“After reviewing the allegations and legal issues at issue in this case, the court is of the view that this case should be resolved through pretrial settlement,” Martinez wrote.

He directed the parties to file a joint motion for a settlement conference if they believed such a conference could be productive.

Katharhynn Heidelberg is the Montrose Daily Press assistant editor and senior writer. Follow her on Twitter, @kathMDP.

Katharhynn Heidelberg is the Montrose Daily Press assistant editor and senior writer. Follow her on Twitter, @kathMDP.

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