DeHerrera et al v. Huerfano County, Colorado et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Daniel D. Domenico
Civil Action No. 1:23-cv-01610-DDD-MDB
SUSAN DEHERRERA, and
JOSE GUERRERO,
Plaintiffs,
v.
HUERFANO COUNTY, a municipality,
JEFF BENSMAN, in his individual capacity,
TERRY SANDOVAL, in his individual capacity, and
SAM JENSEN, in his individual capacity,
Defendants.
ORDER
Defendants are three Huerfano County, Colorado, employees and the
County itself. Plaintiffs allege the Defendants violated their rights un-
der the Fourth Amendment by entering their property without permis-
sion to conduct a search by inspecting a water well site that was being
drilled and connected. Each party has filed a motion for summary judg-
ment. Docs. 68, 70, 72, 74. Because the evidence, viewed most favorably
to Plaintiffs, fails to establish a constitutional violation, Defendants’ mo-
tions for summary judgment are granted and Plaintiffs’ is denied.
BACKGROUND
The rough outline of events is not meaningfully disputed. Plaintiffs
DeHerrera and Guerrero were having a well installed on their property
in Huerfano County for use with their parked camper, though not
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plumbed into it.1 Doc. 72 at 2 ¶¶5, 8. The County received a complaint
about this construction and dispatched defendants Sandoval and Bens-
man to investigate. Doc. 70 at 2 ¶¶3,6. They did so by driving onto the
private property where Plaintiffs lived in a camper. The well site itself
amounted to a pit dug to contain the well pipe and pump. As a result of
the excavation to bury most of the well equipment underground, work-
ers had left a pile of dirt on the side of the well furthest from the camper.
Bensman and Sandoval parked their trucks on the side of this pile op-
posite the camper. Doc. 72 at 3 ¶¶ 14-15. From there, tempers flared.
DeHerrera and Guerrero told Bensman and Sandoval to leave, which
they eventually did after walking around the well site and arguing with
the plaintiffs and the workers installing the well. Each side videotaped
the relevant portions of the interactions, both with phones and a body
camera.
APPLICABLE LAW
Summary judgment is appropriate when “the movant shows that
there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is
material if “under the substantive law it is essential to the proper dis-
position of the claim.” Wright ex rel. Tr. Co. of Kansas v. Abbott Lab’ys,
Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001). A dispute is genuine “if
the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). If, drawing all reasonable inferences in the light most favorable
to the nonmoving party, a reasonable juror could not return a verdict for
1 	Parties refer to the dwelling alternately as an RV, camper, and a fifth
wheel. The outcome does not turn on this potential distinction, so I will
go with camper.
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the nonmoving party, summary judgment is proper. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986).
DISCUSSION
I. 	Open Fields
The Fourth Amendment provides that “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasona-
ble searches and seizures, shall not be violated.” U.S. Const., amend. IV.
“[H]ouses,” for Fourth Amendment purposes, include a home's curtilage,
and a home's “front porch is the classic exemplar” of curtilage. Florida
v. Jardines, 569 U.S. 1 at 1 (2013). But observation of plaintiffs’ curti-
lage from an open field is not a search under the Fourth Amendment.
United States v. Hatfield, 333 F.3d 1189, 1198 (10th Cir. 2003). The de-
terminative question is whether Defendants Bensman and Sandoval en-
tered the curtilage of the camper or remained in an open field.
Defendants Bensman and Sandoval assert their trucks were parked
behind the pile of dirt created by the well drilling. Bensman’s body cam-
era footage confirms this. Doc. 72-5.2 Right at the 1:37 mark in the video,
both trucks are visible, as is their location relative to the drilling rig.
The relationship of the drilling rig to the camper is shown at 2:36. Id.3
3:50 in the video captures the closest either Sandoval or Bensman got to
the camper. Plaintiffs characterize this distance as “just a few feet away
from the excavated water well site” Doc. 72 at 3 ¶15, and this excavated
well 	site 	as 	“several 	feet” 	from 	the 	camper. 	Id. 	at 	¶20. 	Each
2 	Each party submitted identical videos as exhibits to their motions.
For clarity, I use the labeling system from Plaintiffs’ motion.
3 	The camper in question is the newer vehicle on the left. The other
camper belongs to another individual not involved in this case. Doc. 68-
3 at 5.
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characterization is technically true, in the sense that “few” means “made
up of a small number Few, WEBSTERS (Second ed. 1988) and “several”
“more than two or three but less than many” Several, WEBSTERS (Second
ed. 1988). Defendants assign a number: forty feet from the camper to the
well. Docs. 68 at 16, 70 at 15.
At the summary judgment stage, clear video evidence in the record
can resolve factual disputes. Scott v. Harris, 550 U.S. 372, 380-81 (2007).
Summary judgment requires that there be no genuine disputes of mate-
rial facts, not simply some dispute. Id. at 380. What the three videos of
the incident make clear is that neither Bensman nor Sandoval came any
closer than the large pile of dirt on the far side of the well. Docs. 72-2,
72-3, 72-5.
But this dispute is not material. There are four factors that deter-
mine whether an area falls within the curtilage of a home: “[1] the prox-
imity of the area claimed to be curtilage to the home, [2] whether the
area is included within an enclosure surrounding the home, [3] the na-
ture of the uses to which the area is put, and [4] the steps taken by the
resident to protect the area from observation by people passing by.
United States v. Dunn, 480 U.S. 294, 301 (1987). These factors combine
to determine “whether the area in question is so intimately tied to the
home itself that it should be placed under the home’s “umbrella” of
Fourth Amendment protection.” Id.
The proximity of Defendants Bensman and Sandoval to the camper
receives the bulk of the dispute between the parties. The evidence shows
that the well site is approximately twenty feet from the camper. Doc. 72-
2. Both where Defendants parked and where they subsequently walked
is on the far side of the well site, another 20 feet away. Doc. 72-5. This
distance is beyond what typically can raise an inference that it is within
the curtilage. 	See, e.g., Dunn (50-60 yards yields no inference, U.S. v.
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Bell, 191 F.App’x 663, 668 (10th Cir. 2006) (50 feet); U.S. v. Brady, 993
F.2d 177, 178-79 (9th Cir. 1993)(45 feet); U.S. v. Jackson, 728 F.3d 367,
374 (4th Cir. 2013) (grass strip beyond patio and “at least 20 feet” from
backdoor in apartment complex with shared sidewalks, not in curtilage);
U.S. v. Wilburn, 2012 WL 1658697, at *2-3 (E.D. Ky. Mar. 5, 2012) (pro-
pane tank 20-30 feet away from trailer wasn’t within curtilage). Deter-
mining a precise distance isn’t necessary for this determination. Bens-
man and Sandoval never approached the camper and remained close to
the well site, a construction area not particularly close to the home nor
intimately tied to it.
Both parties note that there is no fencing around Plaintiffs’ camper.
Plaintiffs demure that the lack of fencing around the well site is not rel-
evant because the complete lack of fencing around the camper or prop-
erty as a whole. Doc. 99 at 9-10.4 This is not so. The point of the Dunn
factors is to suss out “whether the area harbors the intimate activity
associated with the sanctity of a man’s home and the privacies of life”
Rieck v. Jensen, 651 F.3d 1188, 1193 (10th Cir. 2011) (citations omitted).
The lack of a fence is indicative of how the Plaintiffs viewed the sur-
roundings of their camper, namely as a place to park their camper when
occupying the land rather than a more permanent establishment. Even
a fully enclosing fence is not dispositive: the 10th Circuit notes that vis-
ibility from above affects the expectation of privacy of a fenced in yard.
Hatfield, 333 F.3d at 1196.
Emphasizing the use of the well site, Plaintiffs make the most of the
importance of getting water from a well. But while important, that is
hardly a private activity. Plaintiffs ran a long hose from the well to their
camper. Doc. 72-2. Whatever image of filling up a pastoral bucket to
4 	Plaintiffs raise this argument in their responses rather than their
motion for summary judgment.
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bring back to the homestead this situation might conjure, the well itself
appears to be intentionally separated from the camper. The well site
where Bensman and Sandoval walked was not used for intimate activi-
ties of the home. See Rieck, 651 F.3d at 1193.
The final factor is what steps Plaintiffs took to protect the well site
from observation by passersby. They note that the well and pump are
below ground and 258 feet away from the nearest public roadway. While
relevant, the distance from the road does not establish privacy. The De-
fendants drove across an open field to approach the well site. Plaintiffs
attempt to import the law of trespass into this calculation. Doc. 72 at 8.
I have some sympathy, but the very point of the open fields doctrine is
that it is not governed by the rules of trespass. Dunn upheld the actions
of two officers who trespassed on private property to look into a barn.
480 U.S. at 297. Fullbright v. United States did the same, finding that
officers observation of an illegal distilling operation in a shed from an
open field was not a search covered by the Fourth Amendment. 392 F.2d
at 433-34 (10th Cir. 1968). Ultimately, the 10th Circuit does not consider
whether government officials were trespassing in its Fourth Amend-
ment analysis. Hatfield, 333 F.3d at 1198-99.
What remains is a situation quite similar to Hatfield. Bensman and
Sandoval were standing in an open field, observing a well site that was
either itself in an open field or within plain view of it. Though Plaintiffs
argue that observation from an open field is different than a search of
effects found within them, that is not an accurate characterization of
what happened here. The underlying facts are not in material dispute,
and when considered under the Dunn factors, they show that the De-
fendants did not encroach into the curtilage of the Plaintiffs’ home. See
Rieck v. Jensen, 94 F.4th at 1193. Defendants committed no unconstitu-
tional search.
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II. 	Qualified Immunity
Qualified immunity shields state officials from money damages un-
less “a plaintiff pleads facts showing (1) that the official violated a stat-
utory or constitutional right, and (2) that the right was “clearly estab-
lished” at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563
U.S. 731, 735 (2011) (citing Harlow v. Fitzgerald, 457 U.S. 800 (2009)).
Courts have the discretion to decide which of the two prongs to address
first. Id. Failure to meet either prong is fatal to a plaintiff’s claim. The
constitutional violation must be stated at a sufficient level of particular-
ity “that a reasonable official would understand that what he is doing
violates that right.” Saucier v. Katz, 533 U.S. 194, 202 (2001) (citing An-
derson v. Creighton, 483 U.S. 635 (1987)).
Plaintiffs argue that “the protection against unreasonable searches
is certainly ‘clearly established.’” Doc 72 at 17. This is of course true (it’s
the very language of the Fourth Amendment, after all) but is just the
sort of high-level assertion that Saucier warns is inadequate. A plaintiff
must find “a Supreme Court or Tenth Circuit decision on point, or the
clearly established weight of authority from other courts” in light of the
particular context rather than as a broad proposition. Lowther v. Chil-
dren Youth and Family Dep’t., 101 F.4th 742, 756 (10th Cir. 2024) (citing
Mocek v. City of Albuquerque, 813 F.3d 912, 922 (10th Cir. 2015)). There
is no clearly established right not to have government officials look at a
construction site located somewhat close to a residence. Defendants
Bensman and Sandoval could not have been on notice that their actions
were unconstitutional even if there was a violation. Both have qualified
immunity against these claims.
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III. Failure to Train
Plaintiffs argue that Sam Jensen and the County failed to adequately
train Bensman and Sandoval about the County’s written code enforce-
ment policy. They now concede that Jensen was uninvolved. Docs. 97 at
2 ¶4, 97 at 1-2. Without any genuine allegations that Sam Jensen was
anything more than a government employee in the same department as
the other defendants, he cannot be liable.
A local government may not be sued solely on the basis of injury in-
flicted by its employees or agents. Monell v. Dep’t of Soc. Servs., 436 U.S.
658, 695 (1978). It is only when the injury results from official policy
that the government entity is liable. Id. Inadequacy of training may be
the basis for § 1983 liability if municipal “policy or custom is the moving
force behind the constitutional violation.” And the failure to train
amounts to deliberate indifference to the rights of those the officials
come into contact with. City of Candon v. Harris, 489 U.S. 378, 388-89
(1989) (internal quotations omitted). Plaintiffs’ Monell claim suffers a
fatal flaws: there is no underlying violation.
A Monell violation requires an underlying constitutional violation.
Hinton v. City of Elwood, 997 F.2d 774, 782 (10th Cir. 1993). None exists
here, as explained above. Even if there were, governments are not liable
for the actions of their employees solely on the basis of respondeat supe-
rior, only when a constitutional violation arises from governmental cus-
tom. Monell, 436 U.S 691. There are no allegations that the County’s
written policies are unconstitutional.
Plaintiffs allege that the County’s written code enforcement policy
required Bensman and Sandoval to obtain an administrative warrant to
enter property where they have been denied access. Doc. 72 at 16. This
is not quite so. The policy tracks 10th Circuit jurisprudence that the law
of trespass does not define the limits of Fourth Amendment searches.
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Doc. 20-2 at 10-11. Plaintiffs argue that Bensman was quite unlikely to
have been told to violate this policy. Doc. 72 at 16. The policy does not
expressly lay out the County’s approach to the open fields doctrine, but
this is not enough to establish Monell liability. Defendants Bensman
and Sandoval acted both constitutionally and within the scope of County
policy.
IV. Motion to Strike Sham Affidavits
Defendants move to strike portions of the declarations that both
Plaintiffs submitted as exhibits to their motion for summary judgment.
Doc. 102. Defendants contend these declarations, Docs. 72-1 and 72-2,
are at odds with Plaintiffs’ sworn depositions and video evidence and
are not based on personal knowledge. These assertions were made, De-
fendant argue, to create sham issues of fact to undermine the Defend-
ants’ motions for summary judgment. The Tenth Circuit “take[s] a dim
view of substantive alteration of deposition testimony.” BancFirst ex
rel. Est. of M.J.H. v. Ford Motor Co., 422 F. App’x 663, 666 (10th Cir.
2011) (internal citation omitted). It permits “disregard[ing] a contrary
affidavit if it constitutes an attempt to create a sham fact issue.” Gab-
aldon v. New Mexico State Police, 139 F.4th 1207, 1211 (10th Cir.
2025) (internal citations omitted); Franks v. Nimmo, 796 F.2d 1230 at
1237 (10th Cir. 1986) (internal citations omitted) (“[T]he utility of sum-
mary judgment as a procedure for screening out sham fact issues
would be greatly undermined if a party could create an issue of fact
merely by submitting an affidavit contradicting his own prior testi-
mony.”). It “employ[s] a three-part test to determine whether an affida-
vit creates a sham fact issue”: “(1) the affiant was cross-examined dur-
ing his earlier testimony; (2) the affiant had access to the pertinent evi-
dence at the time of his earlier testimony or whether the affidavit was
based on newly discovered evidence; and (3) the earlier testimony
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reflects confusion which the affidavit attempts to explain.” Gabaldon,
139 F.4th at 1211 (internal citation omitted).
The bulk of objected-to claims in the declarations concern the dis-
tance of the well site from the camper, the Defendants’ parking location
from the well site, and where Defendants walked. And most of what is
really objected to are characterizations, such as whether the camper was
located “several feet from the excavated water well site” or whether
Sandoval and Bensman “approached within a few feet of the excavated
water well site.” Doc. 102 at 3. These are not material factual disputes
relevant to whether a constitutional violation occurred. The well site is
not within the curtilage of the camper, as discussed above. The remain-
der of the factual discrepancies, such as dates, are sloppy, but again not
relevant to the actual dispute. Each party submitted identical video ev-
idence as part of their motions for summary judgment, and this can be
used to resolve claims made in affidavits. Scott v. Harris at 380-81
(2007). Whether the characterizations made in the declarations are ac-
curate or not does not affect the outcome of the motions. Some of the
more fine-grained, nitpicky arguments over the definition of “few” and
“couple” do not need to be resolved for the disposition of this case.
CONCLUSION
It is ORDERED that:
The 	Defendants’ 	MOTIONS 	FOR 	SUMMARY 	JUDGMENT
(Docs. 68, 70, 74) are GRANTED;
The Plaintiffs’ MOTION FOR SUMMARY JUDGMENT (Doc. 72) is
DENIED; and
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The Defendants’ MOTION TO STRIKE SHAM DECLARATIONS
(Doc. 102) is DENIED AS MOOT.
DATED: March 25, 2026 	BY THE COURT:
Daniel D. Domenico
Chief United States District Judge
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