WALSENBURG, Colorado — A husband and wife who own property in Huerfano County are suing the county's former code enforcement officer, its building inspector, and their supervisor claiming they violated their civil rights.
The alleged infringement happened nearly 3 years ago when Susan DeHerrera and Joe Guerrero were drilling a well.
DeHerrera recorded a video of the confrontation with former code enforcement officer Jeff Bensman and Huerfano County Building Inspector Terry Sandoval in July of 2021.
The video shows DeHerrera approach Bensman as he is walking toward the contractors who are operating the drilling rig.
"No, you go away," Bensman says to DeHerrera.
"No, I'm not. I'm the owner," DeHerrera replies. 'You tell me what you're doing here."
"I don't have to tell you nothing," Bensman says.
"Yeah you do, I'm the owner," DeHerrera insists.
A little bit later in the recording, DeHerrera interrogates Sandoval demanding to know, "Why are you here?"
"Because I got a call that was saying that stuff was being built," Sandoval replies.
"OK, there's nothing being built," DeHerrera says.
"I understand that," Sandoval answers.
"OK, then please leave," DeHerrera demands.
Their attorney argues in the lawsuit that the two men failed to follow county policy and violated the couple's 4th Amendment Rights by entering the property without a warrant and refusing to leave when asked.
The Huerfano County's Code Enforcement Policy instructs employees that they may enter private property, "to seek permission to investigate the premises."
"If Code Enforcement staff are refused access or entry, and entry is necessary to conduct the investigation, staff shall consult with the County Court Judge to go about obtaining an administrative search warrant," the document reads.
"The Defendants did not have an administrative search warrant to carry out their code enforcement investigations on Plaintiffs’ property and yet remained and defiantly continued their investigation on Plaintiffs’ property for about one hour, even after Plaintiffs repeatedly refused Defendant Bensman’s and Sandoval’s access and demanded they leave Plaintiffs’ property," Plaintiff's attorney Taylor Minshall wrote in the complaint.
The attorney representing Sandoval filed a motion to dismiss the case claiming his client has qualified immunity. Attorney William T. O'Connell, III argued Fourth Amendment protections did not apply in this case because of the "open fields" doctrine.
“The term ‘open fields’ may include any unoccupied or undeveloped area outside of the curtilage” and need not be either “‘open’ nor a ‘field,'" O'Connell wrote citing the Supreme Court ruling in Oliver v. United States.
The judge granted in part and denied in part the motion to dismiss.
United States District Judge Daniel Domenico ruled the plaintiffs failed to overcome a two-prong legal test applied qualified immunity arguments
However, Judge Domenico allowed the 4th Amendment claim to go forward.
This was not the only incident to come up between Guerrero, DeHerrera, and Bensman. Guerrero unsuccessfully sought a restraining order against Bensman in November of 2022.
In an interview with News 5, he said he believes county officials are targeting him and his wife because of a critical natural resource below their land; water.
"We're sitting on a lake that's 500 feet (sic) our well goes down 680 feet. Our static level is at 125 (feet)," Guerrero said.
DeHerrera thinks the animosity stems from the opaque history surrounding a dirt road that cuts through the southeast corner of their property.
A county street sign identifies the road as County Road 504. DeHerrera said they have no documentation in their property records showing county ownership and none was found during the title process.
"And so, we checked with the assessor's office, and he says no, that's your road," she said. "And it's like, what's going on here? And the road and bridge (department) was saying, no that's our road, that's our property and everything else, and it's like, well prove it."
This federal case does not litigate those issues.
The plaintiffs claim their court battles with Huerfano County have cost them more than $100,000. They are seeking damages and asked to court to enjoin the defendants from retaliating against them and subjecting them to unlawful searching in the future.
News 5 sent emails seeking comment to the Chair of the Huerfano County Commissioners, the County Administrator, and the County Attorney. We are awaiting their reply.
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