Joel Hernandez v. Tim Norton; Elbert County Sheriff's Office; Mike Skalisky

Denver, Colorado personal injury lawyer represented the Plaintiff who sued on a civil rights violation theory.



Joel Hernandez was wounded when a police officer unintentionally shot him while he was hiding under a cover in the back of a pickup. The district court concluded that the officer was entitled to qualified immunity because our cases do not clearly establish that an unintentional shooting in this context amounts to 2 County Sheriff's Office, is too conclusory to sustain a municipal liability claim.



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.



Hernandez sued Sergeant Skalisky, asserting a claim under 42 U.S.C. § 1983for excessive force under the Fourth Amendment. Sergeant Skalisky moved to dismiss under qualified immunity. Hernandez also asserted a Monell claim against

Elbert County Sheriff Tim Norton and the Elbert County Sheriff's Office.



The district court dismissed Hernandez's claims. As for Sergeant Skalisky, the district court found that Hernandez failed to show it was clearly established that Sergeant Skalisky's action—namely, the unintentional firing of his gun in response to being startled by Hernandez's movement—was unlawful. The district court also found that Hernandez's Monell claim was too conclusory to survive a motion to dismiss.unconstitutional excessive forc

Affirmed.