The actions of tribal police in shooting a man who mistook officers for brawling house guests did not meet the criteria for negligence under federal law, the U.S. Court of Appeals for the 10th Circuit ruled on Friday.

In December 2012, Anthony Martinez was hosting a party at his father’s house in southwest Colorado when a fight erupted between guests. Martinez forced the combatants outside, where the fight ended. After leaving for a time, two of the guests returned around 1 a.m. with additional family members. Martinez punched one of them, prompting another physical altercation, according to records.

Southern Ute Police Department Officers Cheryl Herrera, Matthew Mitchell and Patrick Backer responded to a call for service. By the time Mitchell and another officer arrived at the house near Ignacio, the fight was over. The two left around 1:30 a.m., but Herrera and Backer, who had spoken to other parties since the report, decided to check on one of the women allegedly hit in the dispute. Reportedly, she was still at the Martinez residence.

Arriving at 3:30 in the morning, Hererra, who was still in training, decided to use a “blackout” tactic of parking out of sight and approaching quietly. The maneuver was ostensibly for the officers’ own safety and possibly to prevent harm to domestic violence victims if a perpetrator hears police arriving.

Martinez, however, mistook the police vehicle for that of two of the combatants. He believed they had returned to fight and so Martinez, who was intoxicated, hid behind a nearby bush with a metal baseball bat. Herrera and Backer, now trailed by Mitchell, had no visible police identification from the front as they approached the house. When they heard rustling in the bush, they shined a flashlight, prompting Martinez to charge them. Backer shot Martinez.

Martinez sued the U.S. government under the Federal Tort Claims Act, which deems the tribal officers are federal employees if their agencies are contracted to receive federal funding. In this case, the U.S. Department of the Interior’s Bureau of Indian Affairs had an agreement with the Southern Ute Police Department. 

A U.S. district court granted the officers qualified immunity for Martinez’s excessive force claim. The judicial doctrine holds that government employees cannot be sued absent a violation of clearly-established constitutional rights. Subsequently, there was a six-day trial for Martinez’s claim of negligence.

Senior Judge Richard P. Matsch ultimately sided with the government, finding that even if the officers showed “questionable judgment” in returning for a welfare check after Mitchell had found no cause for concern hours earlier, they had reason to believe that the alleged perpetrator of the assault might react violently if all of them returned to the house in the same manner.

“Martinez charged at them which is an intervening cause of his injury,” Matsch wrote. “The stealth approach was not the proximate cause of injury to Martinez.”

The three-member panel for the 10th Circuit found not only that the U.S. government had immunity, but that the district court lacked jurisdiction to try the matter. Under the federal tort law, Judge Scott M. Matheson Jr. wrote, a court has to decide first if the government employees’ conduct was discretionary, and if so, whether the decision was “based on considerations of public policy.” If the answer to both questions is yes, governmental immunity applies.

Martinez “has not shown that the Officers ‘violated a federal statute, regulation, or policy’ by using the blackout approach,” the appeals court concluded. Under the Bureau of Indian Affairs’ law enforcement handbook, there was no policy for “blackouts,” meaning the use of the tactic was discretionary.

The court concluded that the “blackout” tactic did involve policy considerations because it “requires officers and police departments to balance competing safety concerns” for themselves and suspected victims of domestic violence. 

While Martinez further argued that the officers violated the rule to identify themselves as police when initiating a contact, Matheson countered that Martinez was actually the one who initiated by charging them with a baseball bat.

The appellate judges also dismissed Martinez’s argument that a noncoercive “knock and talk” at a person’s residence violates the Fourth Amendment right against unlawful searches and seizures. Again, Matheson pointed out that Martinez’s actions did not even give the officers the ability to approach the house door and ask to talk.

The Bureau of Indian Affairs did not immediately respond to a request for comment. The Southern Ute Police Department, which patrols nearly 678,000 acres across three counties, referred inquiries to the tribe.

The case is Martinez v. United States of America.