The Gunnison County Sheriff’s Office deputy who is named in a federal suit alleging excessive force secured a waiver in 2015 allowing him to certify as a peace officer, state documents show.
Clare Ann Hein earlier this year sued the GCSO and Deputy Wesley Hersberger, alleging Hersberger violated her rights by arresting her without cause. She further alleges he threw her to the ground, leaving her with a concussion. Other officers searched her car without a warrant, her suit says.
Hein had made a complaint about loud music coming from the campus field near her home in 2017 and then walked onto the campus to complain to a person she thought was an official. Others called police to complain after she began complaining to people in the press box, which brought Hersberger to the scene, and ended in her arrest, although charges ultimately were dismissed.
Hein’s complaint alleges excessive force and, on the part of GCSO, negligent hiring practices with respect its employment of Hersberger, who had a past misdemeanor conviction for third-degree assault.
The defendants deny the suit’s allegations and are seeking dismissal of the complaint.
Hersberger was convicted in 2009, before he became a deputy. Hein’s attorney in the complaint said the conviction precludes Hersberger from become certified through the Peace Officer Standards and Training board, unless a special waiver is granted, plaintiff’s attorney Roger Sagal said.
In response to a public records request by the Montrose Daily Press, the Colorado Attorney General’s Office provided a copy of the waiver that was granted to Hersberger in 2015.
In a letter granting the waiver, POST Director Cory Amend noted Hersberger hadn’t had any incidents since and had performed volunteer work to “better yourself and the community.”
Hersberger that year made a written request for a Rule 8 variance, saying that in July 2009, he was walking with a group of people who were “accosted” by an intoxicated man “who proceeded to put his hands on one of the women accompanying me.”
The letter says Hersberger tried to talk the man into leaving them alone, but the man took a swing and he defended himself. Eight months later, to his surprise, he was charged. He had never been in trouble with the law before, or since, he said.
“My involvement was voluntary, but not intentional or planned, an act of defense that might have been avoided had I called the police immediately. I have had much time to deliberate on my error and regret the incident wholeheartedly,” Hersberger wrote.
At the beginning of his letter, he said the charge “marred my character and prevented me from easily entering into this career field, which I have actively trained toward and desired since I was an adolescent.”
He sought the variance so he could attend a law enforcement academy and eventually work in law enforcement.
Hersberger asked Amend to consider factors such as his mentorship of a Boy Scouts troop, medical field training and certifications as a wilderness self responder and in basic life services.
On Wednesday, Hein filed an unopposed motion to keep confidential information outside the scope of the litigation, such as non-party personnel documents; internal investigations or reviews of GCSO employees and Hein’s medical records.
Such information is to be marked as confidential and can only be used for purposes of the litigation. The parties and legal counsel are not to disclose it directly, or indirectly to unauthorized people except for purposes of the case and unless there is a signed affidavit applicable to its release.
Hein was recovering from dental work Sept. 29, 2017, when loud music began being played from a nearby soccer field on the college campus. She went there to complain and in response, others on scene called authorities. Hersberger was among those to respond.
Hein turned around when she saw him, her car key in hand. The suit claims Hersberger grabbed Hein, then 71, by the hand, twisted it, kicked her legs from beneath he and when she went to the ground, he shoved her head into the ground, demanding she drop her keys.
Officers on scene searched her car without permission and went through her cell phone, Hein alleges.
She was taken to jail but was not given a Miranda warning, the suit says. Only after jail staff saw her picking grass, blood and dirt off herself did someone ask whether she needed medical attention, per the lawsuit.
Hein alleges she was falsely charged with obstruction and contends the GCSO should not have hired Hersberger because of his 2009 conviction.
This conviction was not disclosed when Hein was fighting the obstruction charges and that led to their dismissal, her suit says.
Hersberger said through his attorney Hein did not state a claim for which relief can be granted and none of her allegations rise to the level of violating her constitutional rights. At all times, he acted in accordance with the law without intent to cause Hein harm, he said.
The GCSO in its response said it is not liable purely because an employee may have violated a constitutional right and Hersberger’s past conduct as a civilian does not make it “plainly obvious” that hiring him would result in excessive force.
Katharhynn Heidelberg is the Montrose Daily Press assistant editor and senior writer. Follow her on Twitter, @kathMDP.