Attorneys for a Gunnison County Sheriff’s Office deputy who is accused in a civil suit of excessive force against a 71-year-old cancer survivor argue there is no basis for the plaintiff’s claim of unlawful search and seizure.
Accordingly, Wesley Hersberger is entitled to summary judgment on that claim, brought by Clare Ann Hein in 2019, over her encounter with deputies in 2017, the attorneys said in an Aug. 31 motion.
Hein said during a February deposition that she did not know whether Hersberger participated in the search of her vehicle, or whether he encouraged other officers to do so, according to the motion and transcripts filed as supporting exhibits.
Hein’s encounter with Hersberger and Gunnison police officers happened in 2017, when she went on campus at Western Colorado University to complain about loud music. She first complained to people in the field’s press box and someone there contacted law enforcement.
Hersberger was among responding officers and during their encounter, allegedly kicked her feet from beneath her and shoved her head into the ground before arresting her. She sustained a concussion, but did not receive aid until after another person at the jail saw her picking dirt out of her hair.
Charges against Hein were dismissed after her defense attorney showed Hersberger’s 2009 conviction for misdemeanor assault had not been disclosed. Hersberger was a civilian at the time of that conviction and subsequently received a state waiver allowing him to become a sworn peace officer.
In 2019, Hein sued the Gunnison County Sheriff’s Office and Hersberger.
In her complaint against the GCSO, she alleged the agency had been negligent in its hiring practices and had ratified Hersberger’s conduct.
The claims against GCSO were dismissed in May and the agency was terminated as a party to the case.
Hein’s complaints against Hersberger allege excessive force in violation of the Fourth Amendment, unlawful seizure of her purse/false arrest and unlawful search of her vehicle.
But despite her allegations that her car was searched without her consent, Hein testified she didn’t know whether Hersberger had asked the officers to search her car, or if he encouraged them, the Aug. 31 defense motion states. Nor did Hein see the officers search her car, the motion adds. Accordingly, the unlawful search claim should be dismissed.
“Plaintiff concedes that Deputy Hersberger did not participate in the search of her car. … Indeed, plaintiff did not even see the other officers allegedly search her car,” the motion states, adding it is “undisputed” that Hersberger didn’t tell the officers to conduct a search, nor is it disputed that neither officer remembers searching the car.
Attorney William T. O’Connell said because “there is absolutely no evidence” to support Hein’s unlawful search claim, that one should be dismissed.
The U.S. District Court on Wednesday granted the parties’ joint motion for a final pretrial conference, which is to be held within the next 60 days, electronically due to COVID-19.
Katharhynn Heidelberg is the Montrose Daily Press assistant editor and senior writer. Follow her on Twitter, @kathMDP.