Mesa County District Attorney Daniel Rubinstein has declined to file criminal charges against two Mesa County sheriff’s deputies involved in the August restraint of a 57-year-old man who later died. Rubinstein concluded prosecutors could not prove any homicide offense beyond a reasonable doubt, stating that the deputies’ use of force was legally justified. The decision, outlined in a letter dated Oct. 7, means deputies Jose Carbajal and Justin Tinkle will not face criminal prosecution following the incident near Central Distributing in Clifton.
Deputies Carbajal and Tinkle encountered Mr. Herrera shortly after midnight on Aug. 22. They had responded to reports of an apparently intoxicated man acting erratically at a nearby Maverik convenience store. Dispatchers informed deputies that a shirtless man had approached customers, attempted unwanted contact, and was reported to have damaged a truck mirror, though investigators later determined the mirror was not broken. Witnesses described Mr. Herrera as behaving strangely, wandering through the store, entering restricted areas, and making unusual statements.
Before deputies arrived, investigators found that Mr. Herrera had crossed the street to Central Distributing. Surveillance video showed him throwing rocks at a window, running into it, and kicking through an exterior pane, which left him with cuts and glass on his body.
When deputies made contact, Mr. Herrera reportedly asked for water, attempted to open the door of a patrol vehicle, and gave unusual responses when questioned. According to body camera footage and deputy statements reviewed by prosecutors, a struggle ensued when deputies attempted to handcuff him and he pulled away. Deputy Tinkle took Mr. Herrera to the ground as deputies worked to control his arms and place him in handcuffs.
The review found that Deputy Tinkle placed a knee near Mr. Herrera’s upper shoulder and neck area during the initial struggle. Later, Tinkle placed a knee on Mr. Herrera’s upper back after he attempted to roll while handcuffed. Prosecutors estimated this second period of knee contact lasted approximately 50 seconds before pressure was reduced and then removed.
After the restraint, deputies noticed Mr. Herrera was unresponsive. They moved him into a recovery position, requested an emergency medical response, administered naloxone, and began CPR. Paramedics later restored a pulse and transported him to St. Mary’s Hospital, where he was pronounced dead early on Aug. 23.
An autopsy conducted by forensic pathologist Dr. Dean Havlik determined Mr. Herrera died from mixed methamphetamine and bupropion intoxication. Dr. Havlik listed law enforcement restraint and obesity as contributing conditions. He classified the manner of death as homicide, a medical designation that indicates another person’s actions contributed to the death, but found no traumatic injury that contributed to Mr. Herrera’s death.
Rubinstein emphasized that a medical finding of homicide does not automatically establish criminal liability. He stated that prosecutors must still prove the specific elements of a criminal offense, including causation and the required mental state. The district attorney examined potential charges including second-degree murder, manslaughter, and criminally negligent homicide. He concluded the evidence did not support a finding that deputies knowingly caused Mr. Herrera’s death, consciously disregarded a substantial risk of death, or failed to perceive such a risk in a criminally negligent manner.
DA Rubinstein also considered a potential misdemeanor assault charge, given that the restraint caused physical pain. However, he determined that the evidence would not allow prosecutors to disprove beyond a reasonable doubt that the force used was justified under Colorado law. The district attorney said deputies had a lawful basis to detain Mr. Herrera based on reports of criminal activity and his behavior at the scene, concluding that the force used was a reasonable response to Mr. Herrera’s resistance and that criminal charges were not warranted. Rubinstein stated, "Accordingly, I decline to file any charges in this matter."
