The former Gunnison County resident who alleges she was the victim of excessive force by a deputy there has again revamped her complaint to claim the Gunnison County Sheriff’s Office kept the deputy employed, despite a recommendation for his termination.
Clare Ann Hein’s suit accuses the GCSO and Deputy Wesley Hersberger of constitutional violations related to injuries she says she sustained as the result of Hersberger taking her to the ground during a 2017 arrest, in which subsequent charges against her were dismissed.
In a Nov. 4 motion, the GCSO said little has changed in the latest complaint filed in U.S. District Court and the new version does not raise sufficient matters to sustain itself. It should be dismissed, the GCSO contends, denying the substance of the complaint. Hersberger, in Nov. 5 answer, “denies that he assaulted the plaintiff” and that he violated any law or constitutional obligation.
Hein, now 73, was detained in 2017 after making a noise complaint concerning music being played at a sporting event on the college campus in Gunnison. People there reportedly called authorities in response to the way she was complaining; Hersberger was among officers who responded.
He arrested her on the allegation that she was obstructing law enforcement. Charges later were dropped when it was determined Hein’s defense attorney hadn’t been informed of Hersberger’s 2009 misdemeanor assault conviction, over an incident — the nature of which is disputed in the federal suit — that occurred when he was still a civilian.
Hersberger obtained a waiver from the Police Officer Standards and Training Board, which enables him to serve in a sworn law enforcement position.
Hein in her suit accuses the deputy of violating her civil rights for allegedly kicking her feet from beneath her, shoving her head into the ground, and causing a concussion, as well as emotional trauma.
She claims excessive force, false arrest and an unlawful search of her vehicle, purse and cell phone.
The suit also alleges the GCSO was willfully negligent in hiring Hersberger and failing to properly train and supervise him.
Hein’s second amended complaint, filed Oct. 28, alleges that in addition to mischaracterizing the nature of her injuries when making public statements about its internal investigation of the incident, the GCSO had ignored advice to fire Hersberger.
Per the new filing, the 7th Judicial District Attorney’s Office investigated and in 2018, told the GCSO “it would be almost impossible to prosecute any future case involving Deputy Hersberger.”
The agency reportedly was told any such case would reveal his misdemeanor assault conviction and that he would have to disclose any history of excessive force.
“GCSO was advised to terminate Deputy Hersberger,” the complaint says. But after the agency completed its internal investigation of the Hein manner, it reinstated the deputy to duty “contrary to the advice provided.”
The GCSO decisions with respect to retaining Hersberger, as well as its initial decision to seek prosecution of Hein, amount to ratification of Hersberger’s alleged conduct, the suit also says.
His “attack on Ms. Hein and her resulting injuries are direct consequence of the GCSO’s wrongful hiring of Deputy Hersberger,” attorneys Roger Sagal and Tiffany Drahota wrote, accusing the department of deliberate indifference.
But Hein’s claims are reiterative and do not meet legal thresholds, the filings from Hersberger and the GCSO indicate.
The GCSO motion to dismiss says “little has changed” between the complaints Hein has filed and none include facts that plausibly suggest liability with respect to Hersberger’s hiring and training.
Nor do the allegations include facts suggesting GCSO knew or approved of the alleged use of force and Hein has not provided anything that would establish a direct, causal link between the alleged violation of her rights and the agency’s hiring, supervision or training practices, the motion says.
Hein also fails to allege sufficient facts that could show supervision would have prevented the conduct at issue and that Hersberger’s misdemeanor conviction while a civilian does not make it “plainly obvious” he would use excessive force as a deputy.
In the Nov. 5 filing, Hersberger’s attorney William O’Connell says Hein failed to state a claim for which the court can grant her relief.
At all times, he acted in accordance with the law and constitutional requirements, without intent to harm Hein, and he did not breach any legal duty to her, the answer says.
O’Connell said in the document that his client’s actions were objectively reasonable, as was the force used.
Hein was the proximate cause of any injury or damages she suffered and further, if she in fact suffered damages, any award “must not” include anything for a pre-existing condition. Punitive or exemplary damages against the deputy would be a violation of his due process rights, O’Connell contends.