The federal appeals court based in Denver ruled on Thursday that an Elbert County sheriff’s employee cannot be held liable for shooting an unarmed man who startled him.

Joel Hernandez sued Sgt. Mike Skalisky for excessive force for shooting him at the Kiowa Industrial Park in March 2021. In response, Skalisky invoked qualified immunity, which is a judicially created doctrine shielding government employees from civil lawsuits unless they violate a person’s clear legal rights.

A three-judge panel of the U.S. Court of Appeals for the 10th Circuit declined to say whether Skalisky violated Hernandez’s constitutional rights. Instead, it concluded no prior court cases under similar circumstances had put Skalisky on notice that he would act unreasonably by impulsively shooting Hernandez.

In previous cases involving constitutional violations from police use of force, “officers deliberately considered whether to use force, and then chose to do so. Those facts are far from the ones present here,” wrote Judge Timothy M. Tymkovich, “where Sergeant Skalisky fired his gun out of startlement and surprise.”

Hernandez alleged that an Elbert County sheriff’s deputy saw Hernandez speeding in the opposite direction. The deputy turned around and found the vehicle, unoccupied, in an industrial park. The deputy saw the vehicle had no license plates, but it was not stolen.

Other sheriff’s employees were nearby on unrelated business. Workers at the industrial park said they recently saw a man running. The deputies searched the area, and Skalisky decided to look among the buildings by himself, with a firearm that had no external safety feature.

Skalisky encountered a pickup truck bed with a cover over it. Skalisky lifted it up and saw Hernandez in the fetal position. Hernandez shifted, startling Skalisky. He fired his gun, striking Hernandez in the abdomen and requiring hospitalization.

A review of the shooting disclosed that Skalisky was “emotional” after firing into Hernandez. At the time, Skalisky was possibly concerned about encountering a suspect who was at large in an unrelated homicide investigation.

“With this information in mind, Sgt. Skalisky’s conduct of a tactical search appears more reasonable,” wrote Chief Deputy District Attorney Ann B. Tomsic, explaining her decision not to pursue criminal charges against Skalisky.

In December 2023, U.S. District Court Judge Gordon P. Gallagher dismissed Hernandez’s claims. Without deciding whether Skalisky used unconstitutional force, Gallagher agreed the lack of any similar cases meant no court had put Skalisky on notice his actions were clearly unreasonable.

During oral arguments in November, the 10th Circuit panel debated at length with Hernandez’s lawyer about the propriety of Skalisky’s actions under the circumstances.

“Do you agree that the shooting was basically accidental?” asked Judge Joel M. Carson III.

“No,” responded attorney Kevin C. Flesch. “He had the weapon pointed at the tarp and he must have had his finger inside the trigger guard.”

“If you pull the tarp up and it’s somebody with a gun, you’d kind of wish that you’d had your firearm on them,” pointed out Judge Gregory A. Phillips.

Carson acknowledged Skalisky seemingly had taken “a really aggressive approach to investigating” a misdemeanor license plate offense. But from Skalisky’s perspective, the deputies were looking for someone who was evading apprehension for some unknown reason.

“They can’t know your client’s mindset. All they know is objectively, someone jumped out of their truck and took off,” he said.

“But that’s not against the law,” replied Flesch. If Skalisky was concerned about his safety, “then you have backup.”

Ultimately, the panel agreed Skalisky was entitled to immunity.

“It may not be best practice to have a weapon drawn in these circumstances, but even routine traffic stops can sometime escalate into violent confrontations,” wrote Tymkovich in the Jan. 2 order.

The panel also concluded Hernandez had not put forward sufficient allegations demonstrating the policies of the sheriff’s office itself were behind Skalisky’s use of force.

The case is Hernandez v. Norton et al.