On January 2, 2025, the Tenth Circuit Court of Appeals decided Hernandez v. Norton[i], which serves as an excellent review of the law related to accidental shootings.  The relevant facts of Hernandez, taken directly from the case, are as follows:

In March 2021, an Elbert County Colorado deputy was traveling on Highway 86 when he noticed a white Ford F-350 speeding in the opposite direction. The truck had no license plates. The deputy turned around and pursued the truck, ultimately finding the vehicle parked in a nearby industrial park. The truck was locked and unoccupied. The deputy ran the truck’s vehicle identification number and found that the license plates associated with that truck were expired.

Other law enforcement officers were on the scene for unrelated reasons, including Sergeant Skalisky. Employees of the industrial park told the officers that they saw a male running for the outbuildings on the property. Sergeant Skalisky searched the outbuildings for the truck’s driver, with a Glock in hand. He made verbal announcements as he conducted his search, including, “Sheriff’s Office, make yourself known,” or “Sheriff’s Office, come out.”

As part of his search, Sergeant Skalisky opened a canvas cover above a pickup bed with his left hand, where he found Hernandez inside, lying in a fetal position with his head pointed towards Sergeant Skalisky. As Sergeant Skalisky opened the canvas cover, Hernandez moved his feet, which startled Sergeant Skalisky, causing him to jump back immediately in surprise, exclaim an expletive, and fire a round that struck Hernandez in the abdomen. Sergeant Skalisky then proceeded to treat Hernandez and told the other officers who arrived on the scene to put their weapons away because the shooting was an accident.[ii]

Hernandez sued Sergeant Skalisky for excessive force under the Fourth Amendment and sued Sheriff Norton under Monell for failure to train.  The district court granted the sergeant’s motion for qualified immunity and the sheriff’s motion for summary judgment.  Hernandez appealed to the Tenth Circuit Court of Appeals.

The court of appeals first discussed qualified immunity and stated

To overcome a qualified immunity defense, the plaintiff must show [1] that the “defendant’s actions violated a constitutional or statutory right,” and [2] that the “constitutional or statutory right[]” in question “w[as] clearly established at the time of the conduct at issue.” Archuleta v.Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008). “[I]n order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Toevs v. Reid, 685 F.3d 903, 916 (10th Cir. 2012) (citation omitted). “Although Supreme Court precedent ‘does not require a case directly on point for a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate.'” Grissom v. Roberts, 902 F.3d 1162, 1168 (10th Cir. 2018) (citation omitted).[iii]

The court then set out to examine if the law was clearly established, such that there was precedent that would put a reasonable officer on notice that it violated the Fourth Amendment to accidentally shoot a suspect that was hiding and moved suddenly, startling the officer.  [Note:  The court of appeals skipped the first part of the test, specifically whether the shooting actually violated the Fourth Amendment, and chose to begin with part two, which they are permitted to do since a plaintiff must satisfy both parts of test.]

Hernandez, in support of his position that the law was clearly established, cited cases that held that “it is clearly established officers may not purposely shoot a misdemeanant or traffic violation suspect without warning and who is otherwise not resisting.”[iv]  The court of appeals further stated

None of Hernandez’s cases involved officers who discharged his weapon recklessly, or out of startlement, or more specifically, fired a shot in response to a suspect-in-hiding’s sudden movements. That is the relevant inquiry. In Garner, Cavanaugh, and Perea, the officers had time to assess the situation and decided to use force. Sergeant Skalisky confronted a different situation, and none of Hernandez’s cases would have put any reasonable officer on notice that actions like the one Sergeant Skalisky took here would be unlawful.[v]

Thus, since Hernandez was unable to satisfy the second prong of the qualified immunity analysis, the Sergeant Skalisky is entitled to qualified immunity and the decision of the district court was affirmed.

The court of appeals also examined the failure to train claim against the sheriff.  The court discussed the legal standards for such a claim and stated

A “municipality’s decision not to train its officers” amounts to a section 1983 violation “only when the failure to train ‘amount[s] to deliberate indifference to the rights of persons with whom the [untrained employees] come into contact.” Georgev. Beaver Cnty., by & through Beaver Cnty. Bd. of Commissioners, 32 F.4th 1246, 1253 (10th Cir. 2022) (internal quotation marks and citation omitted). “[A] plaintiff must prove a pattern of untrained employees’ constitutional violations to show deliberate indifference.” Id. “Municipal liability is ‘most tenuous where a claim turns on a failure to train.'” Id. (citation omitted).

Here, the court of appeals noted that the plaintiff alleged that the sheriff’s department failed to train officers on de-escalation tactics and proper procedures regarding firing weapons.  They cited no evidence to support these allegations other than the incident involving Hernandez.  The court of appeals noted that “a single prior incident cannot constitute a pattern of conduct giving rise to deliberate indifference.”[vi]  Hernandez did not even cite a single prior incident; rather, he only cited his incident.  Therefore, the court held that, since Hernandez failed to establish a pattern of conduct, which is required to show deliberate indifference, the sheriff was entitled to summary judgment.  Thus, the court of appeals affirmed the decision of the district court.

Author’s Note:

It bears noting that, although the court of appeals opted, as they are allowed to do, not to decide the first prong of the test to defeat qualified immunity, specifically whether the deputy violated the Fourth Amendment when he accidentally shot Hernandez, it is unlikely that the plaintiff would have satisfied this prong as well.  This is because, the Fourth Amendment is only implicated when an officer intentionally uses force to conduct a seizure.

For example, in Childress v. City of Arapaho,[vii] the Tenth Circuit held that officers did not violate the Fourth Amendment when they shot at a car that contained hostages and suspects, and accidentally hit the hostages.  The officers, intending to shoot the suspects and rescue the hostages, accidentally shot the hostages.  The hostages sued the officers for violating their Fourth Amendment rights.  The Tenth Circuit noted that the use of force must be willful (intentional) to implicate the Fourth Amendment.

 

Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.

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Citations

[i] No. 24-1025 (10th Cir. January 2, 2025)

[ii] Id. at 1-3

[iii] Id. at 3-4 (emphasis added)

[iv] Id. at 5

[v] Id at 5-6

[vi] Id. at 7 (emphasis added)

[vii] 210 F.3d 1154 (10th Cir. 2000)