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The U.S. District Court has dismissed the Gunnison County Sheriff’s Office from a woman’s 2019 complaint, which alleged the agency had ratified the conduct of a deputy who the same suit accuses of excessive force.

Clare Ann Hein’s suit says the deputy, Wesley Hersberger, slammed her to the ground when responding to a noise complaint near Western Colorado University in 2017, arrested her without due cause, and conducted an unlawful search of her vehicle, purse and phone. The GCSO further was negligent in Hersberger’s hiring and training, the suit claims.

Hein, a breast cancer survivor in her 70s, also contended the GCSO, by having hired Hersberger despite a misdemeanor assault conviction, was negligent. By reinstating him for duty after the incident, it ratified his alleged conduct.

The GCSO and Hersberger filed for dismissal of her claims.

U.S. District Judge William Martinez in a Monday order granted the GCSO’s dismissal motion.

The court dismissed with prejudice Hein’s claim that the agency had ratified Hersberger’s alleged conduct. Her other claims against the agency were dismissed without prejudice, meaning they can potentially be refiled.

Martinez’s order terminates the GCSO as a party to the case. An order has not been issued with respect to Hersberger’s motion for dismissal.

Hein’s attorney could not be immediately reached for questions as to whether an appeal might be filed.

For her claims to hold up in court, Hein had to prove actions undertaken as part of official municipal policy caused her legal injury. Ratification (review and approval) of such actions by the policy makers of such entities can constitute municipal policy or custom for purposes of liability.

The U.S. District Court found, however, that what Hein had presented as ratification did not occur until after the events that prompted her lawsuit.

“As such, the extent that the GCSO did ratify Hersberger’s improper conduct, such ratification cannot give rise to municipal liability because, by definition, it could not have caused (Hein’s) injuries,” Martinez wrote.

Hein’s complaint says that after she went on campus in 2017 to complain about loud music, others called police.

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 and subsequently received a state waiver allowing him to become a sworn peace officer.

Hein’s suit says the GCSO was advised to terminate Hersberger after a 2018 review of the incident involving her, with the District Attorney’s Office finding “it would be almost impossible to prosecute any future case involving Deputy Hersberger” because his assault conviction would be revealed as part of the discovery process. Despite this, Hersberger was reinstated, amounting to ratification of conduct, the Hein complaint argues.

The GCSO’s attorneys argued previously that Hein could not prove liability with the proof she offered.

The court in its May 18 order appeared to agree. In addition to finding the ratification of conduct as alleged was insufficient for municipal liability, it rejected her arguments concerning the agency’s failure to properly train or supervise the deputy.

According to Martinez’s characterization of her argument, Hein had argumed the failure to train on the appropriate use of force with at-risk adults constituted deliberate indifference to at-risk adults’ rights to be free from excessive force.

“The court disagrees,” Martinez wrote, saying the complaint raised not even one instance of a similar constitutional violation that had happened before at the hands of a GCSO deputy, let alone a pattern of such conduct.

There was no plausible suggestion that the unconstitutional consequences of such deficient training were “highly predictable or patently obvious,” as required, the order went on to say, although “it cannot be doubted that a prudent sheriff’s office would require deputies with prior assault convictions to undergo some additional training as to the appropriate uses of force.”

Still, it does not follow that the need to train Hersberger posed an obvious risks to people’s constitutional rights, or was deliberately indifferent, Martinez found.

Without a history of incidents similar to those Hein alleged, the GCSO could assume deputies would not need specific instructions that the circumstances Hein alleged would be deadly force.

The court again disagreed on the claim that Hein’s injuries were the inevitable consequence of hiring Hersberger, even if it was “highly questionable.”

Williams said Hein failed to allege when the sheriff’s office hired Hersbrger.

Had that been shortly after his assault conviction, there could have been plausible inference of risk, but without the hiring date in hand, the court could not speculate as to the matter.

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

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