April Sabbe v. Washington Cnty Bd of Comm'rs

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

APRIL SABBE, Individually and as No. 21-35431

Personal Representative of the Estate

of Remi Sabbe, Deceased, D.C. No. 3:19-cv-

02106-IM

Plaintiff-Appellant,

v.

OPINION

WASHINGTON COUNTY BOARD

OF COMMISSIONERS; PATRICK

GARRETT, in his individual capacity;

CHRIS BOWMAN, in his individual

capacity; CHAD LOTMAN, in his

individual capacity; EARL BROWN,

in his individual capacity; CADE

EDWARDS, in his individual

capacity,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Oregon

Karin J. Immergut, District Judge, Presiding

Argued and Submitted May 9, 2022

Portland, Oregon

Filed October 17, 2023

2 SABBE V. WASHINGTON CNTY. BD. OF COMM’RS

Before: Marsha S. Berzon, Richard C. Tallman, and

Morgan Christen, Circuit Judges.

Opinion by Judge Christen;

Partial Concurrence and Partial Dissent by Judge Berzon

SUMMARY *

Civil Rights/Deadly Force

The panel affirmed the district court’s summary

judgment for law enforcement officers in an action alleging,

in part, that defendants violated Remi Sabbe’s Fourth

Amendment rights by entering his private property without

a warrant, using an armored vehicle to intentionally collide

with Sabbe’s pickup truck while he was inside, and shooting

and killing him.

Defendants responded to calls from Sabbe’s neighbor

that Sabbe was driving a pickup truck erratically on a rural

field on his own property, that he was drunk and belligerent

and may have fired a gun. An hour after thirty officers

arrived at the property in marked police cars with their

overhead lights on, defendants used an unmarked armored

vehicle to twice execute a pursuit intervention technique

(“PIT”) maneuver by intentionally colliding with Sabbe’s

truck in the field. Officers reportedly shot Sabbe after they

thought they heard a gunshot and saw a rifle pointed at them.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

SABBE V. WASHINGTON CNTY. BD. OF COMM’RS 3

The panel first rejected plaintiff’s argument that

defendants violated Sabbe’s Fourth Amendment rights by

entering the property without a warrant. Sabbe’s response

to the warrantless entry was a superseding cause of his death

and unforeseeable given the circumstances. Accordingly,

the officers’ decision not to obtain a warrant before entering

the property—regardless of whether that decision

constituted a Fourth Amendment violation—was not the

proximate cause of Sabbe’s death.

The panel next held that a jury could find that

defendants’ second PIT maneuver constituted deadly and

excessive force because (1) it created a substantial risk of

serious bodily injury, (2) Sabbe did not pose an imminent

threat to the officers or others at that point, and (3) less

intrusive alternatives were available. Nevertheless, no

clearly established law would have provided adequate notice

to reasonable officers that their use of the armored vehicle to

execute a low-speed PIT maneuver under these

circumstances was unconstitutional.

The panel held that the district court correctly ruled that

the officers were entitled to qualified immunity for shooting

and killing Sabbe because the officers’ split-second decision

to open fire did not constitute excessive force.

Finally, the panel rejected plaintiff’s failure-to-train

claim against the County, finding that the record did not give

rise to a genuine dispute that the County’s failure to establish

guidelines for using the armored vehicle to execute PIT

maneuvers rose to the level of deliberate indifference.

Concurring in part and dissenting in part, Judge Berzon

stated that, viewing the evidence in the light most favorable

to Sabbe, he did not point a rifle or shoot at the officers, nor

did the officers reasonably believe that he did. Defendants

4 SABBE V. WASHINGTON CNTY. BD. OF COMM’RS

therefore were not entitled to summary judgment as to

whether the fatal shooting of Sabbe was excessive

force. Additionally, defendants’ mode of entry onto Sabbe’s

property in an unmarked military vehicle was a proximate

cause of his death. Although Judge Berzon concurred in the

conclusion that a reasonable jury could find that the second

PIT maneuver constituted excessive force, she would deny

qualified immunity because a reasonable officer would have

understood that the action was likely to cause death or

serious injury. Finally, Judge Berzon agreed that the district

court properly dismissed plaintiff’s failure-to-train claim

against the County.

COUNSEL

Louren Oliveros (argued), Oliveros Law PLLC, Uniondale,

New York, for Plaintiff-Appellant.

Scott W. Davenport (argued), Jones & Mayer, Fullerton,

California; Eugene P. Ramirez, Manning & Kass Ellrod

Ramirez Trester LLP, Los Angeles, California; Tom Carr,

County Counsel, Office of Washington County Counsel,

Hillsboro, Oregon; for Defendants-Appellees.

SABBE V. WASHINGTON CNTY. BD. OF COMM’RS 5

OPINION

CHRISTEN, Circuit Judge:

Just after lunchtime on January 12, 2018, Lloyd Wetzel

called the Washington County Sheriff’s Office (WCSO) to

report that someone was driving a pickup truck erratically

and “making a mess of” a rural field owned by his neighbor,

Remi Sabbe. Within a few minutes, Wetzel called back to

say that Sabbe was the person driving the truck, that Sabbe

was “solid drunk” and “belligerent,” and that Wetzel thought

he might have heard a gunshot. Within about an hour,

approximately thirty law enforcement officers pulled up to

the property in marked police cars with their overhead lights

on, with the intention of making their presence known. An

hour after that, two armored vehicles entered Sabbe’s field.

The officer driving the unmarked Commando V150 armored

personnel carrier later testified that the officers’ objective

was to communicate with Sabbe, but the eight officers inside

the V150 had no way to do that. Instead, the V150—which

weighs several times as much as a typical police cruiser—

twice executed a PIT maneuver, intentionally colliding with

Sabbe’s pickup, crushing the truck’s body and spinning it

around in an attempt to stop the truck by causing its engine

to stall. 1 Moments later, officers heard a gunshot. Several

officers opened fire. One of the officers reported seeing

Sabbe maneuvering a rifle toward them before he shot at

1

To execute a pursuit intervention technique (PIT) maneuver, officers

deliberately collide their vehicle into the back half of either side of a

target vehicle. By rotating the target without reversing its direction of

travel, the aim of a PIT maneuver is to reverse the target’s drive train and

cause its engine to stall. See Longoria v. Pinal County, 873 F.3d 699,

703 n.2 (9th Cir. 2017).

6 SABBE V. WASHINGTON CNTY. BD. OF COMM’RS

Sabbe, and another officer reported seeing Sabbe pointing a

rifle at them before he shot at Sabbe. Sabbe was shot

eighteen times and died at the scene.

Sabbe’s widow, April, brought this civil suit seeking

damages from the officers and the County pursuant to 42

U.S.C. § 1983 and state law. She alleges Defendants

violated her husband’s Fourth and Fourteenth Amendment

rights by entering the family’s private property, ramming

Sabbe’s pickup with the V150, and shooting him. The

district court granted summary judgment for Defendants.

Even viewing the facts in the light most favorable to

Plaintiff, the court held that the officers’ conduct neither

violated Sabbe’s constitutional rights nor exceeded the scope

of their qualified immunity.

April Sabbe asks us to reverse the district court’s

decision and remand so her claims may proceed to trial. We

decline to do so because we conclude: (1) even if the

warrantless entry into the Sabbes’ property was unlawful, it

was not the legal cause of Sabbe’s death; (2) a jury could

find that the second PIT maneuver constituted deadly and

excessive force, but no clearly established law would have

provided adequate notice to reasonable officers that it

violated Sabbe’s federally guaranteed rights; and (3) under

the circumstances presented here, the officers’ split-second

decision to open fire did not constitute excessive force.

BACKGROUND

Remi Sabbe and his brother Kevin were the primary

caretakers of eighty-four acres of rural land that their family

owns on the outskirts of Sherwood, Oregon. Much of the

Sabbes’ property is an open field, but it also contains heavily

wooded areas, a barn, a driveway blocked with a chain and

marked with a “Private Property, No Trespassing” sign, and

SABBE V. WASHINGTON CNTY. BD. OF COMM’RS 7

the brothers’ childhood home. The property abuts two

county roads. The Sabbe family hunted together in the area,

and their neighbor Lloyd Wetzel has a few duck blinds.

On January 12, 2018, at approximately 1:33 PM, Wetzel

called 911 to report that someone was “screwing around” in

a pickup truck on the Sabbes’ property and “making a mess

of it.” Sherwood Police Officer Jentzsch was dispatched and

arrived at the Sabbes’ property. Fifteen minutes after his

first call, Wetzel called 911 again, this time identifying the

truck’s driver as his neighbor, Remi Sabbe, whom he

described as “solid drunk” and “belligerent.” Wetzel

reported that he might have heard a gunshot and that Sabbe

“may have a rifle.”

Dashcam video from Jentzsch’s Police SUV captures his

view of the scene. When he arrived, Jentzsch pulled to the

shoulder of a road running parallel to one side of the

property, about 10 meters from where Sabbe’s vehicle was

stopped in the field. Almost as soon as Jentzsch arrived, the

truck backed away from the road and moved deeper into the

field. Jentzsch watched the truck drive slowly but erratically

in the field and hit a tree at a distance Jentzsch estimated to

be about 300 yards. An audio recording and a Computer

Aided Dispatch (CAD) report provide a detailed record of

the radio traffic that followed. 2

At 1:52 PM, Jentzsch reported to dispatch that Sabbe had

left the truck on foot and that Jentzsch had heard a few shots,

but could not tell if it was Sabbe or what was “going on.”

2

We consult both the recording and CAD report because they were both

before the district court and complement each other. The recording

provides a more comprehensive account of what the officers saw and

heard, while the CAD report includes timestamps that allow us to create

a chronology of how the events unfolded.

8 SABBE V. WASHINGTON CNTY. BD. OF COMM’RS

Jentzsch also relayed that Sabbe “might have [a] rifle,” and

later testified that he saw Sabbe holding something “long

and black” horizontally across his waist that he was pointing

in the direction of the intersection. Jentzsch could not say

for certain that he had seen Sabbe possess a weapon, nor did

Jentzsch ever turn on his lights or sirens to announce his

presence to Sabbe or attempt to communicate with him. In

fact, Jentzsch radioed in that he was trying to avoid being

seen.

At 2:05 PM, after about twenty minutes of observation,

Jentzsch reported that he had lost sight of Sabbe. Additional

officers responded, set up a command post about a mile-and-

a-half away at Al’s Garden Center, and began to block the

roadways along the perimeter of the property. Sergeant

Bowman, the officer in command, ordered two armored

vehicles to the scene: a Lenco BearCat armored SWAT truck

(“BEAR”), and the Commando V150 armored personnel

carrier.

To the untrained eye, the V150 resembles a tank.

Originally owned by the Navy, it stands about seven-and-a-

half feet tall and wide and it is over twenty feet long.

Unloaded, it weighs eight-and-a-half tons. Its steel hull and

vision ports are built to withstand munitions up to .30

caliber. Both armored vehicles arrived at around 3:00 PM

as a new officer, Lieutenant Lotman, took command.

Though Sabbe’s truck remained in sight and stationary

in the field for over an hour, the officers did not know

Sabbe’s location. In that time, officers attempted to shut

down the public roads abutting the property and placed

nearby schools on lockdown. However, traffic continued to

flow nearby. A media helicopter arrived and noise from the

helicopter made it difficult for officers to hear each other

SABBE V. WASHINGTON CNTY. BD. OF COMM’RS 9

over their radios. Officers also spoke with Kevin and April

Sabbe and learned that Sabbe was upset about a recent

burglary at the house, that he was not violent but probably

scared, that Sabbe had been drinking the night before and

earlier in the day, and that he had been so angry that he broke

his cell phone. April said that her husband’s truck could be

disabled remotely with OnStar, a vehicle telematics system. 3

She also reported that her husband had a gun in his truck (she

did not know what type), that he “d[id] not like police,” and

that he had a history of “elud[ing]” them. Lieutenant

Lotman relayed some of this information over the radio,

telling officers that Sabbe was there “to protect his

property.” There is no indication that the officers sought a

warrant for Sabbe’s arrest.

At some point after 3:23 PM but before 3:28 PM, officers

spotted movement inside the truck. The officers in the V150

radioed Lotman to ask if he wanted them to “go after the

vehicle.” At 3:29 PM, Lieutenant Lotman—relying on radio

communications from officers on the scene and possibly

under the impression that Sabbe’s pickup was moving—

asked the occupants of the armored vehicles, “Can you block

it?” apparently referring to Sabbe’s truck. The officers in the

vehicles seem to have interpreted this as an order to enter the

property because neither the recording nor the CAD report

reflects that anyone answered. Instead, the officers in the

BEAR and the V150 announced that they were moving into

the property from the driveway. As the V150 moved toward

Sabbe, Lieutenant Lotman did not order the officers to stop,

but when asked, “[W]hat crimes [do] we have[?]” Lotman

3

The district court noted that April relayed this information to WCSO

but the record does not include any evidence that resolves whether the

OnStar system could in fact have been used to disable the truck.

10 SABBE V. WASHINGTON CNTY. BD. OF COMM’RS

responded that Sabbe was suspected of “unlawful use of a

weapon.” A voice can be heard on the radio informing the

officers in the V150 that Sabbe was “heading at you,” but it

is otherwise unclear how the vehicles were moving in

relation to each other.

Unlike the V150, the BEAR armored SWAT truck had

police markings and was equipped with a public address

system, but it got stuck in the mud just after entering the

field. The V150 was able to drive on the muddy terrain, but

it lacked police markings and a public address system, and

the V150’s red and blue emergency lights were not visible.

Sergeant Braun, who is not a defendant, was driving the

V150 when it collided with Sabbe’s truck. He also was an

Emergency Vehicle Operations Course instructor and

trained other officers on how to operate the County’s

specialized vehicles. Sergeant Braun was designated

pursuant to Federal Rule of Civil Procedure 30(b)(6) to

testify regarding the County’s training, use, and deployment

of the V150. He testified that the officers’ objective when

the two armored vehicles entered the field was to

communicate with Sabbe, but only the V150 was able to

approach the pickup and, as explained, it had no public

address system. There is no indication that Defendants

considered calling the V150 back from the field after the

BEAR got stuck to allow time for a bullhorn or other public

address system to be brought to the scene.

The news helicopter captured the following events on

video. 4 The truck and the V150 first drove toward each other

on a collision course, and narrowly avoided a head-on

impact because Sabbe slightly veered and the V150 appears

4

This video may be viewed at the following link:

https://cdn.ca9.uscourts.gov/datastore/opinions/media/SabbeVideo.mp4.

SABBE V. WASHINGTON CNTY. BD. OF COMM’RS 11

to have braked. An unidentified voice on the radio—likely

one of the officers in the armored vehicle—can be heard

saying that Sabbe “just rammed the V150.” Though a head-

on collision was avoided, the front ends of the two vehicles

collided. Sabbe was able to continue on his course away

from the armored personnel carrier. Sergeant Braun testified

that, from inside the V150, he perceived that Sabbe had

intentionally rammed the V150 and the officers’ objective

changed at this point, from communication to apprehension.

The V150 turned to follow Sabbe and executed a PIT

maneuver in an effort to stop his pickup. Sergeant Braun

later testified that PIT maneuvers are generally conducted

using squad cars, and the use of the V150 to execute one was

unprecedented. According to Sergeant Braun, the officers’

efforts to stop Sabbe in his field with the V150 marked “the

first time, as an [Emergency Vehicle Operations Course]

instructor, that I’ve ever seen or heard of a piece of armor

being used to . . . perform a PIT maneuver.” He also testified

that he had not received any training on how or whether to

carry out PIT maneuvers with an armored vehicle, and that

doing so was “not something we ever thought of, [and] not

something we’ve ever addressed under policy.”

The V150 struck Sabbe’s truck near the left rear wheel,

spinning the truck about 180 degrees on its axis and crushing

the rear truck bed. But the pickup’s engine did not stall, and

Sabbe drove away from the V150 and brought his truck to a

complete stop in the field. As he opened the door and

attempted to exit, the officers executed another PIT

maneuver into the passenger side of the pickup where the

cab meets the truck bed, crushing the point of impact and

causing the driver’s door to slam into Sabbe’s left leg. The

V150 continued to push into the front passenger side,

rotating the truck again, this time approximately 270

12 SABBE V. WASHINGTON CNTY. BD. OF COMM’RS

degrees. Inside the armored V150, Corporal Edwards

thought he heard a gunshot, and recalled hearing Sergeant

Braun say either “He’s pointing a rifle at us” or “He’s

shooting at us.” Edwards leaned out the V150’s side

opening, saw that Sabbe appeared to be “maneuvering the

rifle to point out the passenger side” of his truck, and fired

one shot at Sabbe. Deputy Brown testified that as he

emerged from a hatch on top of the V150, he heard Braun

yell something to the effect that Sabbe was aiming his rifle

at them, then heard a gunshot and saw Sabbe’s rifle pointing

at the officers. Deputy Brown fired multiple shots at the

truck’s passenger side windows. Braun, who was driving the

V150, testified that his first impression was glass exploding

out away from the truck, then the sound of shots fired by the

other officers. Officers rushed into the field and found

Sabbe in his truck with 18 gunshot wounds to his chest,

abdomen, and arms. Officers found that Sabbe was armed

with an AR-15 rifle. Medics pronounced Sabbe dead at the

scene. There is no evidence the officers directly

communicated with Sabbe at any point.

April Sabbe sued the County, the sheriff, and Officers

Bowman, Lotman, Brown, and Edwards pursuant to 42

U.S.C. § 1983, Monell v. Department of Social Services, 436

U.S. 658 (1978), and state law. Her complaint alleged that

Defendants violated Sabbe’s rights by entering the property

without a warrant, ramming his truck with the V150, and

shooting him to death. Defendants moved for summary

judgment, and the district court granted Defendants’ motion,

dismissing all of the federal claims and declining to exercise

supplemental jurisdiction over the state-law claims. In doing

so, the district court concluded that none of the officers’

actions violated Sabbe’s federally guaranteed rights and that

they were entitled to qualified immunity. April Sabbe

SABBE V. WASHINGTON CNTY. BD. OF COMM’RS 13

appeals the order granting summary judgment on the

unlawful entry, excessive force, and Monell claims, but not

dismissal of the Fourteenth Amendment substantive due

process or state-law claims.

DISCUSSION

We review the district court’s rulings on summary

judgment de novo. Donell v. Kowell, 533 F.3d 762, 769 (9th

Cir. 2008). We view the facts in the light most favorable to

the nonmovant, but are “limited to considering what facts the

officer[s] could have known at the time of the incident.” Est.

of Lopez ex rel. Lopez v. Gelhaus, 871 F.3d 998, 1006 (9th

Cir. 2017) (quoting Davis v. United States, 854 F.3d 594,

598 (9th Cir. 2017)). Our analysis proceeds from the

perspective of a “reasonable officer on the scene” and must

“allow for the fact that police officers are often forced to

make split-second judgments—in circumstances that are

tense, uncertain, and rapidly evolving—about the amount of

force that is necessary in a particular situation.” Plumhoff v.

Rickard, 572 U.S. 765, 775 (2014) (alteration accepted)

(quoting Graham v. Connor, 490 U.S. 386, 396–97 (1989)).

When a victim dies in a police officer shooting, we carefully

examine “all the evidence in the record,” including

circumstantial evidence, to “ensure that the officer[s are] not

taking advantage of the fact that the witness most likely to

contradict [their] story—the person shot dead—is unable to

testify.” Gonzalez v. City of Anaheim, 747 F.3d 789, 795

(9th Cir. 2014) (en banc) (quoting Scott v. Henrich, 39 F.3d

912, 915 (9th Cir. 1994)). However, “we do not credit a

party’s version of events that the record, such as an

unchallenged video recording of the incident, quite clearly

contradicts.” Williamson v. City of Nat’l City, 23 F.4th 1146,

1149 n.1 (9th Cir. 2022) (internal quotation marks and

14 SABBE V. WASHINGTON CNTY. BD. OF COMM’RS

alteration omitted) (quoting Rice v. Morehouse, 989 F.3d

1112, 1120 (9th Cir. 2021)).

I.

April Sabbe’s first argument is that Defendants violated

her husband’s Fourth Amendment rights by entering the

Sabbes’ field without a warrant. “The Fourth Amendment

ordinarily requires that police officers get a warrant before

entering a home without permission. But an officer may

make a warrantless entry when the ‘exigencies of the

situation’ create a compelling law enforcement need.”

Lange v. California, 141 S. Ct. 2011, 2016 (2021) (quoting

Kentucky v. King, 563 U.S. 452, 460 (2011)). Here, we need

not parse whether circumstances justified warrantless entry

into the Sabbes’ field or whether the field qualifies as the

curtilage of Remi Sabbe’s home, because even if the entry

violated the Fourth Amendment, that violation was not the

proximate cause of Sabbe’s death. See Harper v. City of Los

Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008) (noting that a

§ 1983 plaintiff must demonstrate “the defendant’s conduct

was the actionable cause of the claimed injury,” a showing

that requires establishing “both causation-in-fact and

proximate causation”).

The dissent argues we may not affirm on this basis

because the proximate cause inquiry is relevant only to

determining damages, not liability. The dissent’s implied

assertion is that April Sabbe is permitted to raise a claim for

nominal damages based on the warrantless entry itself. To

be sure, a § 1983 plaintiff who cannot show actual damages

may still raise a claim for nominal damages. See, e.g.,

Draper v. Coombs, 792 F.2d 915, 922 (9th Cir. 1986)

(concluding that where “complaint stated valid section 1983

claims for nominal damages,” dismissal for lack of actual

SABBE V. WASHINGTON CNTY. BD. OF COMM’RS 15

damages was improper). But April Sabbe did not raise a

claim for nominal damages. Further, Ms. Sabbe did not

argue she was entitled to nominal damages in the district

court, and she does not argue for such relief on appeal.

Instead, April Sabbe premises her warrantless entry claim—

like all three of her Fourth Amendment claims—exclusively

on Remi Sabbe’s death. Because April Sabbe did not raise

a claim for nominal damages, we need not consider such a

claim’s merits. 5

“The proximate cause question asks whether the

unlawful conduct is closely enough tied to the injury that it

makes sense to hold the defendant legally responsible for the

injury.” Mendez v. County of Los Angeles, 897 F.3d 1067,

1076 (9th Cir. 2018). Where “the injury was actually

brought about by a later cause of independent origin that was

not foreseeable,” that superseding cause cuts off the chain of

causation. See Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S.

830, 837 (1996) (citation omitted). Overall, “[t]he

touchstone of proximate cause in a § 1983 action is

foreseeability.” Phillips v. Hust, 477 F.3d 1070, 1077 (9th

Cir. 2007), vacated on other grounds, 555 U.S. 1150 (2009).

5

Neither of the cases cited by the dissent, Floyd v. Laws, 929 F.2d 1390

(9th Cir. 1991), and George v. City of Long Beach, 973 F.2d 706 (9th

Cir. 1992), compels a contrary conclusion. The Floyd plaintiff, who

sought actual and nominal damages, proved the defendants caused a

violation of her rights at trial, but failed to prove any actual damages.

See Floyd, 929 F.2d at 1400-02. Our court held it was error for the

district court to refuse to award nominal damages and to enter judgment

for the defendants. Id. at 1402. In George, our court again held it was

error for a district court to refuse to award nominal damages and to enter

judgment for defendants after a plaintiff—who sought both actual and

nominal damages—proved a constitutional violation. George, 973 F.2d

at 708. But April Sabbe did not seek nominal damages in the district

court, and does not argue on appeal that she is entitled to pursue them.

16 SABBE V. WASHINGTON CNTY. BD. OF COMM’RS

Defendants argue that Sabbe initiated the first collision

between the V150 and the pickup and that this alone was the

superseding cause of Sabbe’s death. But as explained, video

footage from the hovering helicopter provides a bird’s-eye

view of both vehicles heading toward each other and both

taking some evasive action before the first collision. See

Williamson, 23 F.4th at 1149 n.1. On appeal, we view the

video in the light most favorable to Sabbe. This standard

defeats Defendants’ theory that Sabbe initiated the first,

relatively minor collision with the V150, and the related

conclusion that the initial collision, which Defendants

attribute solely to Sabbe, was the superseding cause of

Sabbe’s death.

However, we agree with Defendants that the record does

not give rise to a genuine dispute about whether Corporal

Edwards or Deputy Brown reasonably perceived that Sabbe

rammed the V150 or pointed a rifle and shot at the officers

after the PIT maneuvers. See Mendez, 897 F.3d at 1076.

Because Sabbe’s response to the warrantless entry was

surely a superseding cause of his death, we conclude that the

officers’ decision not to obtain a warrant before entering the

property—regardless of whether that decision constituted a

Fourth Amendment violation—was not the legal cause of

Plaintiff’s claimed injury.

The dissent, relying on our decision in Mendez, argues

that Sabbe’s actions cannot be a superseding cause because

Sabbe’s conduct was a foreseeable consequence of

Defendants’ entry into the field. Mendez is inapposite. In

Mendez, officers made an unannounced entry into a

residence, surprised the sleeping victim, and mistakenly

perceived as a threat his innocent act of moving a BB gun to

sit up in bed. See id. at 1081–82. We reasoned that the

foreseeability of alert officers misperceiving a sleeping

SABBE V. WASHINGTON CNTY. BD. OF COMM’RS 17

victim’s response to an unannounced entry was “among the

reasons why entry into a home by armed police officers with

weapons drawn is dangerous.” Id. at 1081. We concluded

there was “nothing extraordinary about the possibility that

officers might mistake an innocent implement for a threat.”

Id. at 1082. In the dissent’s view, like the victim in Mendez,

Sabbe’s conduct was a foreseeable consequence of

Defendants’ warrantless entry into the field. 6

The situation here is materially different from Mendez.

Sabbe was not abruptly awoken from sleep in his residence.

Rather, he created a disturbance by driving his truck

erratically while drunk and in possession of a firearm. His

actions understandably prompted a neighbor’s initial

concerned call to the police to report that someone was

“making a mess” of the Sabbes’ field. The neighbor called

back a few minutes later to report that Sabbe was “solid

drunk,” “belligerent” and “may have a rifle.” The police

response followed.

The foreseeable consequences of entering a residence

with guns drawn—as in Mendez—are not at all comparable

to those present here, principally because Sabbe was not

surprised by the police and because he was in a large field.

The police made their presence known before they entered

the property. Dashcam video confirms that Jentzsch pulled

his Police SUV to within about 10 meters of Sabbe’s vehicle,

and that Sabbe immediately backed away in response. Later,

6

To the extent the dissent argues that Defendants misperceived Sabbe’s

actions and their incorrect perceptions were predictable consequences of

the entry, we agree we are obliged to assume Sabbe neither shot first nor

aimed his AR-15 rifle at Defendants. But as we explain, the record does

not give reason to question the reasonableness of the officers’ perception

that Sabbe intentionally rammed them and aimed his rifle at them, even

if we assume he did not actually do so.

18 SABBE V. WASHINGTON CNTY. BD. OF COMM’RS

numerous marked police cars pulled up to the perimeter of

the Sabbes’ field with their overhead lights flashing. The

BEAR with police markings and the unmarked V150, both

vehicles likely to be possessed only by governmental

authorities, were visible from Sabbe’s truck. A news

helicopter hovered loudly overhead. In light of the

conspicuous and protracted police presence around the

perimeter of the field, we cannot say that Sabbe’s response

was the foreseeable result of Defendants’ entry. Put

differently, Defendants’ warrantless entry into the field was

not “closely enough tied” to Sabbe’s death that it makes

sense to hold Defendants legally responsible for Sabbe’s

death. 7 See Mendez, 897 F.3d at 1076.

The dissent argues that in order to constitute a

superseding cause, Sabbe must have actually pointed his gun

or fired at the officers, because only intentional acts may

serve as superseding causes. But again the dissent relies on

Mendez, which does not support that proposition, and we

know of no authority that does. Nor does Mendez suggest

that the reasonable misperception of innocent acts can never

constitute a superseding cause. Under the dissent’s view, an

officer would not be entitled to qualified immunity if he or

she misperceived an innocent gesture, so long as that

misperception bore some connection to earlier conduct

alleged to be a Fourth Amendment violation. We know that

is not the case. See Bonivert v. City of Clarkston, 883 F.3d

865, 872 (9th Cir. 2018) (noting that qualified immunity

“protects an officer who reasonably, but mistakenly,

7

For these reasons, we are not persuaded by the dissent’s view that

Sabbe’s anger with a recent burglary likens him to a citizen defending

his home.

SABBE V. WASHINGTON CNTY. BD. OF COMM’RS 19

perceives facts that would have made his actions lawful had

they been true”).

Boiled down, the dissent argues that Defendants’

“disproportionate,” “aggressive mode of entry” proximately

caused Sabbe’s death. But in making this argument, the

dissent harkens back to the “provocation rule,” where an

officer’s intentional or reckless provocation of a violent

confrontation created an excessive force claim for what

would otherwise be a reasonable use of force. Mendez v.

County of Los Angeles, 815 F.3d 1178, 1198 (9th Cir. 2016),

rev’d, 581 U.S. 420 (2017). The Supreme Court eliminated

the provocation rule, and we are not free to rely on it.

Mendez, 581 U.S. at 428, 432.

Our conclusion that April Sabbe failed to create a

genuine dispute that Defendants’ warrantless entry into the

field proximately caused Remi Sabbe’s death ends our

analysis of the first claim.

II.

April Sabbe next argues that the officers violated her

husband’s constitutional rights when they used the V150 to

execute multiple PIT maneuvers in an attempt to stop his

truck. Sergeant Braun was driving the V150, but, as noted,

he is not a defendant. The complaint alleges that “the

Supervisory Defendants [including Bowman and Lotman]

gave an order to use the [V150] to disable the Sabbe truck

using a PIT maneuver.” See Peck v. Montoya, 51 F.4th 877,

891 (9th Cir. 2022) (explaining that a defendant may be held

liable under § 1983 “if (1) the defendant knew about and

acquiesced in the constitutionally defective conduct as part

of a common plan with those whose conduct constituted the

violation, or (2) the defendant set in motion a series of acts

by others which the defendant knew or reasonably should

20 SABBE V. WASHINGTON CNTY. BD. OF COMM’RS

have known would cause others to inflict the constitutional

injury”).

A court’s order granting qualified immunity at the

summary judgment stage is improper only if the facts,

viewed in the light most favorable to the plaintiff, show that

a defendant’s conduct violated a constitutional right and that

right was “clearly established” at the time of the defendant’s

action. See, e.g., Seidner v. de Vries, 39 F.4th 591, 595 (9th

Cir. 2022). Because a negative answer at either step would

entitle defendants to qualified immunity, we are “permitted

to exercise [our] sound discretion in deciding which of the

two prongs of the qualified immunity analysis should be

addressed first in light of the circumstances in the particular

case at hand.” Pearson v. Callahan, 555 U.S. 223, 236

(2009).

Principles of constitutional avoidance demand that we

“think hard, and then think hard again” before reaching

constitutional questions, but reaching them can be necessary

to “give guidance to officials about how to comply with legal

requirements,” especially when resting our decision solely

on the “clearly established” prong of qualified immunity

would “frustrate ‘the development of constitutional

precedent’ and the promotion of law-abiding behavior.”

Camreta v. Greene, 563 U.S. 692, 706–07 (2011) (quoting

Pearson, 555 U.S. at 237). 8

This appeal—and particularly the officers’ use of the

V150—exemplifies the circumstances in which it is

important to provide guidance. It is now common for law

8

In Pearson, the Supreme Court articulated factors that counsel in favor

of and against deciding constitutional questions in qualified immunity

cases. 555 U.S. at 236–42. In determining whether to exercise our

discretion, we have considered each of them.

SABBE V. WASHINGTON CNTY. BD. OF COMM’RS 21

enforcement agencies to possess and use armored vehicles,

many of which have been decommissioned from military

service, and we have never addressed the degree of force

involved in the use of these vehicles in a civilian setting. The

mismatch between the ubiquity of these vehicles and the

paucity of case law concerning their use is illustrated by the

facts of this case. Washington County publicly reported

deploying its armored vehicles over 100 times in the first

eight months of 2021 alone—about once every two to three

days. 9 Yet Sergeant Braun testified that the officers had

received no training on how to use an armored vehicle to

execute a PIT maneuver because it was “not conceivable”

and “not something we’ve ever addressed under policy.”

Because armored vehicles are now frequently employed by

civilian law enforcement agencies, acknowledging the

quantum of force at issue when they are used to conduct PIT

maneuvers will provide guidance as agencies formulate

policies and train officers to use armored vehicles in ways

that promote public safety without exceeding constitutional

bounds.10 Having thought hard and then thought hard again,

9

Washington County, Proposed Budget Summary, Fiscal Year 2022–23,

at 22 (2022), https://perma.cc/BS9R-BC7W; see Fed. R. Evid. 201(b)(2)

& (c)(1).

10

Under Section 1033 of the National Defense Authorization Act of

1997, “State agencies” are broadly authorized to participate in a

permanent program that allows them to acquire military hardware from

the Department of Defense (DoD) “suitable for use by the agencies in

law enforcement activities.” National Defense Authorization Act for

Fiscal Year 1997, Pub. L. No. 104-201, § 1033, 110 Stat. 2422, 2639

(1996) (codified as amended at 10 U.S.C. § 2576a). Since the program’s

inception, DoD has transferred approximately $7.6 billion of surplus

military property to state and local law enforcement agencies. 1033

Program FAQs, Defense Logistics Agency (2023),

https://perma.cc/4DT5-HZY6 (valuing the decommissioned assets at

22 SABBE V. WASHINGTON CNTY. BD. OF COMM’RS

we consider the constitutional implications of the V150 PIT

maneuvers before deciding whether April Sabbe’s § 1983

claim based on these alleged violations is barred by qualified

immunity.

A.

The Fourth Amendment enshrines the right to be free

from unreasonable seizures, Torres v. Madrid, 141 S. Ct.

989, 995 (2021), so the first question is whether the

intentional use of the V150 to collide with Sabbe’s pickup in

the hope of stopping it constituted a seizure, see Villanueva

v. California, 986 F.3d 1158, 1165 (9th Cir. 2021). We

conclude that it did. A person is seized by “the application

of physical force” with the “intent to restrain.” Torres, 141

S. Ct. at 1003. Under that well-established standard, the

officers seized Sabbe when they executed the PIT maneuvers

with the V150. Sergeant Braun testified that the objective of

a PIT maneuver is to spin the target vehicle around, reverse

its drive train, and “stall the motor out.” The video leaves

no question that the V150 PIT maneuvers changed the

direction of the truck’s movement, turning it around twice

and considerably damaging it. Even though Sabbe was able

to continue driving, he was still “seized” within the meaning

of the Fourth Amendment because the officers applied

original acquisition value). Even excluding unpublished dispositions,

several of our published opinions have observed the use of armored

vehicles like the BEAR and V150 by civilian authorities. See, e.g., Idaho

v. Horiuchi, 215 F.3d 986, 997, 999 (9th Cir. 2000) (Kozinski, J.,

dissenting), vacated as moot, 266 F.3d 979 (9th Cir. 2001); Long v. City

& County of Honolulu, 511 F.3d 901, 905, 908 (9th Cir. 2007); Fisher v.

City of San Jose, 558 F.3d 1069, 1073 (9th Cir. 2009); Blight v. City of

Manteca, 944 F.3d 1061, 1064–65 (9th Cir. 2019). We express no view

on the merits of the Section 1033 Program and police departments’ use

of armored vehicles in general.

SABBE V. WASHINGTON CNTY. BD. OF COMM’RS 23

physical force with the intent to restrain his liberty. See id.

at 999.

The next question is whether the force Defendants used

in their attempt to stop Sabbe’s truck was excessive, or

whether the PIT maneuvers were objectively reasonable

under the circumstances. Graham v. Connor provides the

framework that governs this part of our inquiry. 490 U.S.

386 (1989). Resolving all genuine disputes of material fact

in Plaintiff’s favor, Graham requires that we consider “the

severity of the intrusion on the individual’s Fourth

Amendment rights by evaluating the type and amount of

force inflicted” and “the government’s interest in the use of

force.” Seidner, 39 F.4th at 596 (quoting Williamson, 23

F.4th at 1151). We balance these two factors to determine

whether the government’s use of force was excessive. See

id.

1.

To gauge the type and amount of force used, we assess

both “the risk of harm and the actual harm experienced.”

Nelson v. City of Davis, 685 F.3d 867, 879 (9th Cir. 2012).

The greater the risk of harm and the actual harm involved,

the greater the governmental interest must be to justify the

use of force. See Headwaters Forest Def. v. County of

Humboldt, 276 F.3d 1125, 1130 (9th Cir. 2002). In accord

with our sister circuits, we have defined “deadly force” as

any force that “creates a substantial risk of causing death or

serious bodily injury.” Smith v. City of Hemet, 394 F.3d 689,

706 (9th Cir. 2005) (en banc) (emphasis added). Deadly

force is the most severe intrusion on Fourth Amendment

interests because a person has a “fundamental interest in his

own life.” Tennessee v. Garner, 471 U.S. 1, 9 (1985).

24 SABBE V. WASHINGTON CNTY. BD. OF COMM’RS

The district court recognized “the obvious reality that

PIT maneuvers can be highly dangerous” and acknowledged

the “potential heightened risks” posed by attempting a PIT

maneuver with an armored personnel carrier as opposed to a

typical police patrol car. But the court concluded that the

maneuvers did not rise to the level of deadly force because

the pickup and the V150 were not “moving at high speeds”

and it appeared that Sabbe was not injured, at least by the

first PIT maneuver, because the video shows him attempting

to get out of his truck just before the V150 executed the

second PIT maneuver. See Bryan v. MacPherson, 630 F.3d

805, 824–25 (9th Cir. 2010) (observing that actual harm

caused “is certainly relevant” in evaluating the degree of

force officers used).

The record provides powerful evidence of the risk of

harm posed by the PIT maneuvers. Sergeant Braun, the

County’s Rule 30(b)(6) deponent, acknowledged in his

testimony that there are circumstances in which a PIT

maneuver executed with the V150 would be “highly

probable to result in great bodily injury or death.” Sergeant

Braun testified that “a thousand different variables,”

including both speed and size of the vehicles, affect the force

involved in a PIT maneuver.

The video shows that the V150 executed the first PIT

maneuver by colliding with the bed of Sabbe’s truck at low

speed as he drove across an open field. The V150 did not

make contact with the passenger cab, but even at low speed,

the impact bent the truck’s bed inward, mangled the tailgate,

and partially detached the rear bumper. The collision spun

the truck 180 degrees but did not disable it and Sabbe drove

away. While it appears this first PIT maneuver damaged

Sabbe’s truck more severely than might have been expected

had it had been executed with a regular police cruiser under

SABBE V. WASHINGTON CNTY. BD. OF COMM’RS 25

similar circumstances, it is not clear that a reasonable jury

could find it constituted deadly force. Cf. Scott v. Harris,

550 U.S. 372, 375, 384 (2007) (concluding that deputy used

deadly force when he rammed a vehicle off the roadway

during a pursuit at speeds of 85 miles per hour, sending it

down an embankment and rendering the plaintiff a

quadriplegic).

However, we respectfully disagree with the district

court’s determination that a jury could not find that the

second PIT maneuver presented a substantial risk of at least

serious bodily injury. The video shows that Sergeant Braun

executed a second PIT maneuver by driving the V150 into

the passenger side of Sabbe’s truck, after Sabbe had come to

a complete stop and was trying to exit the truck from the

driver’s door.11 The impact caused the door to swing shut

on Sabbe’s leg and pushed his truck sideways across the

field. The force from the second PIT maneuver was enough

to spin the truck on its axis about 270 degrees.

We evaluate force based on “its capacity for causing

serious harm.” Nelson, 685 F.3d at 885 (emphasis omitted).

Under our case law, a jury could decide that the second V150

PIT maneuver constituted the use of deadly force because it

created a substantial risk of serious bodily injury.12

11

Because the V150 collided with Sabbe’s truck on the passenger side,

it is not clear whether the officers in the V150 could have perceived the

increased risk of executing a PIT maneuver while Sabbe was trying to

exit from the vehicle’s driver’s side.

12

We do not suggest that PIT maneuvers generally or other vehicle-to-

vehicle tactics necessarily or categorically create a substantial risk of

serious bodily injury. See Crim. Just. Testing & Evaluation Consortium,

Nat’l Inst. Just., Vehicle Stoppage and Pursuit Management for Law

Enforcement Agencies 8 (May 2022),

26 SABBE V. WASHINGTON CNTY. BD. OF COMM’RS

2.

The government’s interest in the use of force differs

depending on: (1) the severity of the crime; (2) whether the

suspect posed an immediate threat to the safety of the

officers or others; and (3) whether the suspect was actively

resisting arrest or attempting to evade arrest by flight.

Williamson, 23 F.4th at 1153; see Graham, 490 U.S. at 396–

97. “[T]hese factors are not exclusive; they must be

considered under the totality of circumstances, including

whether ‘less intrusive alternatives’ were available to law

enforcement and whether the suspect was given ‘proper

warnings’ before force was used.” Seidner, 39 F.4th at 599

(quoting Rice, 989 F.3d at 1121–22). The “immediate

threat” factor is the most important. Isayeva v. Sacramento

Sheriff’s Dept., 872 F.3d 938, 947 (9th Cir. 2017) (quoting

S.B. v. County of San Diego, 864 F.3d 1010, 1013 (9th Cir.

2017)).

Even when a suspected felon is fleeing arrest, an

officer’s use of deadly force is reasonable if it is “necessary

to prevent . . . escape and the officer has probable cause to

believe that the suspect poses a significant threat of death or

serious physical injury to the officer or others.” Garner, 471

U.S. at 3. Plaintiff argues that Sabbe posed no threat to the

officers when they initiated the PIT maneuvers because the

officers were in an armored vehicle. This suggests that even

if a bullet had been fired at the V150, it would not have posed

https://cjtec.org/files/64bfb22b75393 [https://perma.cc/TPY4-W5EP]

(“[A]gencies commonly recommend that the maneuver be performed at

slower speeds (35 to 45 mph) unless authorized for use of deadly

force.”). The degree of force represented by any given vehicle-to-

vehicle tactic will necessarily depend on the totality of the

circumstances.

SABBE V. WASHINGTON CNTY. BD. OF COMM’RS 27

a threat to the eight officers inside. We disagree. The

V150’s armor is rated for munitions .30 caliber and below,

but AR-15 platform rifles like the one Sabbe possessed are

commercially available in considerably higher calibers.13

The responding officers had good reason to suspect that

Sabbe was armed, but they had no way of knowing what type

of gun he possessed. As such, the V150 reduced the risk of

harm to the officers but it did not eliminate it. Further, in

addition to indications that Sabbe was armed, the officers

had reason to believe he was drunk and angry, and that he

may have fired a weapon or pointed one toward an

intersection about an hour and forty minutes before the

officers entered the field. Despite the officers’ attempts to

block off the public roadway, traffic continued to pass by on

the road abutting the edge of the property.14

Defendants urge us to conclude that the government had

a heightened interest in using force because Sabbe

threatened the officers’ safety by initiating the first collision

between his truck and the V150. Specifically, Defendants

argue that Sabbe “drove right at the V150 and rammed into

it.” Defendants’ contention is inconsistent with the

summary judgment standard. Although occupants of the

V150 perceived that Sabbe rammed them with his pickup,

13

See, e.g., Tom McHale, .50 Beowulf AR-15: A Home Defense Option?,

Shooting Illustrated (Nov. 24, 2017), https://perma.cc/87GN-X9FX.

14

The dissent acknowledges that radio traffic from 3:23 PM confirmed

there was still a “steady flow of traffic” passing by less than minutes

before the first PIT maneuver occurred. The dissent assumes, based on

Sergeant Bowman’s testimony, that this traffic was successfully shut

down before the PIT maneuvers. The dissent’s supposition is

unsupported. Bowman testified that he could not recall when traffic had

been successfully shut down; he recalled only that it was shut down

“shortly after” a radio call about “civilian traffic coming through.”

28 SABBE V. WASHINGTON CNTY. BD. OF COMM’RS

the video shows that the pickup and the V150 first headed

toward each other on a collision course, and that Sabbe’s

truck veered off slightly and the V150 braked in time to

avoid a head-on collision. We are required to view the facts

in the light most favorable to Sabbe, and we cannot say that

the video shows that Sabbe initiated the first collision, nor

that the V150 was the only vehicle that appears to have taken

steps to avoid it.

When we consider the risk that Sabbe posed to the

officers’ safety, we first observe that Sabbe’s initial reaction

to seeing Jentzsch’s marked police car near his fence line

was to reverse the truck and retreat into his own field. Sabbe

was reported to be driving erratically and tearing up the

muddy field, but he was on his own property, not on a public

roadway, during the entire encounter. And because Sabbe

had not been given any directions by the officers, this was

not a situation in which he was failing to comply with a

lawful order. Notably, Sergeant Bowman agreed in his

deposition testimony that “driving the vehicle” around on the

property, “without more,” such as driving on the public

roadway, was “not a threat.” Though Defendants had reason

to believe that Sabbe was armed and intoxicated, that he may

have discharged a weapon on his property approximately an

hour and forty minutes earlier in a manner that threatened

public safety, and that he intentionally rammed the V150,

there is no indication he had fired from the pickup or pointed

a gun in the direction of the V150 until after the officers

executed both PIT maneuvers. Viewing these facts in the

light most favorable to Plaintiff, a reasonable jury could

conclude that Sabbe did not pose an immediate threat to the

safety of the officers or the public by the time they executed

the PIT maneuvers.

SABBE V. WASHINGTON CNTY. BD. OF COMM’RS 29

Each of the other Graham factors weighs in Plaintiff’s

favor. As to “severity of the crime” and “fleeing or resisting

arrest,” Plaintiff argues that her husband committed no crime

at all by driving in his own field. The record does not

conclusively establish otherwise, but Defendants maintain

that they had reason to suspect that Sabbe fired a weapon

unlawfully (see Or. Rev. Stat. § 166.220).15 The evidence

that Sabbe may have discharged his rifle was Lloyd Wetzel’s

call and Officer Jentzsch’s radioed reports. Wetzel was

unsure whether he heard a shot. Jentzsch thought he heard a

shot, but he was a considerable distance away from Sabbe,

and far from directing Sabbe to stop, Jentzsch was trying not

to be seen. The radio traffic, CAD report, and dashcam

video show that Jentzsch did not have a vantage point that

allowed a clear view of what Sabbe was doing.16 It was only

after Defendants used the V150 to collide with the pickup

and spin it around a second time that any of the officers

perceived that Sabbe was maneuvering inside the cab of the

truck to aim a weapon. These uncontested facts do not

support a finding that, as of the time Defendants executed

the PIT maneuvers, Sabbe had committed a serious crime or

15

The dissent argues that Sabbe could not have violated this statute

because his property was not within city limits, see Or. Rev. Stat.

§ 166.220, but the dissent does not support its assertion that the property

was outside city limits.

16

Jentzsch arrived at about 1:47 PM. He later testified that he originally

estimated that he was about 300 yards away from Sabbe, but

acknowledged he did not know the precise distance. Jentzsch testified

that he saw Sabbe point a “long, black thing” toward an intersection with

vehicle traffic, but he never saw Sabbe point a rifle at him. By the time

the officers executed the PIT maneuvers, at approximately 3:30 PM,

there is no indication that Sabbe was holding the weapon, much less

pointing it at anyone.

30 SABBE V. WASHINGTON CNTY. BD. OF COMM’RS

that he was fleeing or resisting arrest. A jury could weigh

these Graham factors in Plaintiff’s favor.

Finally, we consider that less intrusive alternatives were

available short of the V150 PIT maneuvers. We have

considered less intrusive alternatives in situations in which

police officers used significant force, such as shooting

pepperballs at a crowd without first audibly directing the

crowd to disperse. See Nelson, 685 F.3d at 873, 878–79. In

Nelson, campus and local police officers responded to clear

a gridlocked street of nearly 1,000 students and other

partygoers. Id. at 872–73. Nelson was not suspected of or

charged with committing a crime, and he and other students

alleged they were awaiting direction from the officers. Id. at

874. The officers claimed that they had instructed Nelson

and his friends to disperse, but the students did not hear any

commands until after an officer fired pepperballs at the

crowd, striking Nelson in the eye and seriously injuring him.

Id. In finding the force excessive, we reasoned that though

the officers claimed to have instructed the partygoers to

disperse, they “lacked any means with which to amplify their

voices,” and the students could not hear them. See id. at 882.

We held that the failure to give sufficiently audible warnings

that force would be used weighed against a finding of

reasonableness. See id. We also found the officers’ use of

force unreasonable because they used force without

informing students in the gridlocked street how to comply

with the direction to disperse or that force would be used

against them if they did not behave in a particular manner.

Id. at 882–83.

Here, although the V150 lacked a public address system

and Sabbe had broken his cell phone the night before,

Plaintiff’s expert explained that officers could have made

contact with Sabbe by using the hailing equipment installed

SABBE V. WASHINGTON CNTY. BD. OF COMM’RS 31

on the numerous police units that were present around the

perimeter of the property, and that this would have been “a

safe viable alternative” to the PIT maneuvers. The record

indicates that noise from the helicopter interfered to some

extent with the officers’ ability to hear each other on the

radio, but a reasonable jury could decide that, after the

BEAR got stuck in the mud, it was unreasonable to first use

potentially deadly force instead of requesting

communications equipment, waiting for it, and then

attempting to communicate with Sabbe.17

The officers’ failure to warn or provide direction to

Sabbe before using potentially deadly force weighs against

them. We have repeatedly recognized that “an officer must

give a warning before using deadly force ‘whenever

practicable.’” Gonzalez, 747 F.3d at 794 (quoting Harris v.

Roderick, 126 F.3d 1189, 1201 (9th Cir. 1997) (citing

Garner, 471 U.S. at 11–12)); see S.R. Nehad v. Browder, 929

F.3d 1125, 1137 (9th Cir. 2019). Here, background noise

may have made an unamplified verbal warning ineffective,

but it is undisputed that the officers never communicated or

made any meaningful effort to communicate with Sabbe at

any time during the two-hour incident. The “seemingly

obvious principle” that, when practicable, police should give

warnings before they use deadly force “is not novel” and “is

17

The district court sympathized with Plaintiff’s argument that less

intrusive alternatives were available, but deemed the availability of

alternatives irrelevant. We have held that the availability of less

intrusive alternatives is not dispositive, but we have also held that this

factor is relevant to whether a use of force was reasonable. See, e.g.,

Rice, 989 F.3d at 1123–24; Glenn v. Washington County, 673 F.3d 864,

872 (9th Cir. 2011).

32 SABBE V. WASHINGTON CNTY. BD. OF COMM’RS

well known to law enforcement officers.” See S.R. Nehad,

929 F.3d at 1137.18

3.

The final task under Graham is to balance the officers’

use of force with their interest in using that force. This

inquiry focuses on the facts as they existed immediately

before the officers initiated the second PIT maneuver.

Because a reasonable jury could decide that Sabbe did not

pose an imminent threat to the officers or to others at that

point, and that the balance of the other factors also favors

Plaintiff, a jury could decide that the second PIT maneuver

constituted the use of excessive force within the meaning of

the Fourth Amendment.

B.

We conclude that qualified immunity shields Defendants

from Plaintiff’s claim that the officers used excessive force

when they used the V150 to collide with Sabbe’s truck.

“Qualified immunity attaches when an official’s conduct

does not violate clearly established statutory or

constitutional rights of which a reasonable person would

have known.” White v. Pauly, 580 U.S. 73, 78–79 (2017)

(per curiam) (citation and internal quotation marks omitted).

For a right to be “clearly established,” it must be

“sufficiently clear that every reasonable official would have

understood that what he is doing violates that right.”

Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam)

(internal quotation marks omitted). Although the Supreme

Court “does not require a case directly on point for a right to

18

In S.R. Nehad, we concluded the Fourth Amendment violation was

contrary to law that was clearly established by April 2015. See 929 F.3d

at 1130, 1141.

SABBE V. WASHINGTON CNTY. BD. OF COMM’RS 33

be clearly established, existing precedent must have placed

the statutory or constitutional question beyond debate.”

Pauly, 580 U.S. at 79 (alteration accepted) (internal

quotation marks and citation omitted).

“In some circumstances, ‘a general constitutional rule

already identified in the decisional law may apply with

obvious clarity to the specific conduct in question, even

though the very action in question has [not] previously been

held unlawful.’” Bonivert, 883 F.3d at 872 (alteration in

original) (quoting United States v. Lanier, 520 U.S. 259, 271

(1997)). But even if another case articulates an applicable

legal principle, qualified immunity shields the defendant

from liability when the circumstances of that case are

“materially distinguishable” from the one before us. Rivas-

Villegas v. Cortesluna, 142 S. Ct. 4, 6 (2021) (per curiam).

We are unaware of any Supreme Court or federal court

of appeals decision quantifying or characterizing the degree

of force involved in using an armored vehicle to execute a

low-speed PIT maneuver, let alone any precedent that would

have clearly established that the officers’ use of the V150

under these circumstances was unconstitutional. Defendants

are not entitled to qualified immunity “simply because ‘the

very action in question has [not] previously been held

unlawful,’” but we are still required to find that the facts of

a prior case would have made it “clear to a reasonable officer

that his conduct was unlawful in the situation he

confronted.” City of Tahlequah v. Bond, 142 S. Ct. 9, 11

(2021) (per curiam) (quoting District of Columbia v. Wesby,

138 S. Ct. 577, 590 (2018)).

Plaintiff argues that Defendants are not entitled to

qualified immunity for their use of the V150, citing our

decisions in Villanueva, 986 F.3d at 1158, Sandoval v.

34 SABBE V. WASHINGTON CNTY. BD. OF COMM’RS

County of San Diego, 985 F.3d 657 (9th Cir. 2021), and

Harris v. Roderick, 126 F.3d at 1189. She also cites the

Supreme Court’s decision in Torres, 141 S. Ct. at 989. None

of these cases assist her cause. With the exception of Harris,

each of these cases was decided more than two years after

the events in this case took place, so they could not have put

Defendants on notice of clearly established law. “[A]

reasonable officer is not required to foresee judicial

decisions that do not yet exist in instances where the

requirements of the Fourth Amendment are far from

obvious.” Kisela v. Hughes, 138 S. Ct. 1148, 1154 (2018).

In Villanueva, we held that police officers’ use of deadly

force to stop a “very slowly” moving vehicle executing a

three-point turn was unreasonable under clearly established

law because we had held in Orn v. City of Tacoma, 949 F.3d

1167, 1175 (9th Cir. 2020), that an officer’s use of deadly

force to stop a vehicle moving toward him at five miles per

hour was unreasonable. 986 F.3d at 1170–71. The key to

our holding in Villanueva was that the record showed the

officer “could have easily stepped out of the vehicle’s path.”

Id. at 1170. In Sandoval, we held that nurses at a county jail

violated clearly established law by failing to call paramedics

or check on an inmate who was visibly suffering from a life-

threatening drug overdose. 985 F.3d at 678–81. Although

we had not addressed the specific factual circumstances in

that case, previous cases had found constitutional violations

where custodians delayed treatment for hours when inmates

were suffering from non-life-threatening conditions. Id. at

680. We reasoned that these cases were sufficient to put

“every reasonable nurse” in the defendants’ position on

notice that it was unconstitutional to deny needed medical

treatment to an inmate who “was sweating and appeared so

tired and disoriented that a deputy urged that he be re-

SABBE V. WASHINGTON CNTY. BD. OF COMM’RS 35

evaluated.” Id. In Harris, we held that an FBI agent violated

clearly established law by shooting an armed suspect without

warning, even though the suspect had engaged in a shootout

with federal officers the previous day. 126 F.3d at 1202–04.

We reasoned in Harris that Graham and Garner clearly

established that officers may not use deadly force against a

person who cannot reasonably be perceived to be taking any

furtive or threatening actions, even if that person is armed.

Id. at 1204. Finally, in Torres, the Supreme Court held that

troopers had seized a suspect by shooting her, even though

she subsequently and temporarily eluded capture. 141 S. Ct.

at 998–99.

The circumstances underlying these cases are materially

distinguishable from the circumstances presented by the

confrontation between Sabbe and the officers who entered

his field. Plaintiff does not show how these cases articulate

a constitutional rule that applies with such obvious clarity

that it should have put Defendants on notice that their use of

the V150 to execute PIT maneuvers could constitute the use

of deadly force, or that the use of deadly force was excessive

under the circumstances presented here. Having canvassed

our own case law, we are similarly unable to locate any such

precedent. We had not recognized before today that the use

of an armored vehicle to execute a low-speed PIT maneuver

could constitute the use of deadly force. Accordingly,

Defendants are entitled to qualified immunity on the claim

that the V150 PIT maneuvers were unconstitutionally

excessive.

The dissent would reverse the order granting qualified

immunity as to Defendants’ execution of low-speed V150

PIT maneuvers on the basis that taking such action was an

“obvious case” where the officers should have been on

notice that the PIT maneuvers could constitute the use of

36 SABBE V. WASHINGTON CNTY. BD. OF COMM’RS

excessive force, despite the lack of precedent clearly

establishing that their actions would constitute a

constitutional violation. The dissent relies on Smith v. City

of Hemet, but that case concerned whether the use of pepper

spray, physical assaults, and K-9 dog bites to subdue a

suspect constituted excessive force. 394 F.3d at at 700-04.

“[A]n officer ‘cannot be said to have violated a clearly

established right unless the right’s contours were sufficiently

definite that any reasonable official in the defendant’s shoes

would have understood that he was violating it.’” Kisela,

138 S. Ct. at 1153 (quoting Plumhoff, 134 S. Ct. at 2023).

Again, though the rule from Kisela does not mean a plaintiff

must identify a case that is “directly on point,” Pauly, 580

U.S. at 79 (citation omitted), we know of no case law that

would obviously apply to the conduct here, particularly

given the low speed of both vehicles and because the V150

struck near the left rear wheel and at the passenger side of

Sabbe’s pickup to spin and disable it. We do not agree that

the situation presented circumstances constituting an

“obvious case” within the meaning of the pertinent case law.

III.

April Sabbe also argues the officers violated her

husband’s Fourth Amendment rights when they shot and

killed him. In Plaintiff’s view, the record does not establish

that Sabbe shot or pointed a gun at the V150 such that

objectively reasonable officers would believe that Sabbe

posed an immediate threat to their safety. Plaintiff maintains

Sabbe neither pointed nor fired a gun at the V150.

Defendants say he did both.

Given the standard of review, we resolve the “who shot

first” dispute in Plaintiff’s favor, but whether Sabbe actually

fired his rifle at the officers is immaterial to our qualified

SABBE V. WASHINGTON CNTY. BD. OF COMM’RS 37

immunity analysis. See Long, 511 F.3d at 906. In our

circuit, “the relevant question for purposes of qualified

immunity” is not whether Sabbe actually threatened the

officers, but whether they “could reasonably have believed

that [he] posed such a threat.” A.K.H. ex rel. Landeros v.

City of Tustin, 837 F.3d 1005, 1011 (9th Cir. 2016). “Where

an officer’s particular use of force is based on a mistake of

fact, we ask whether a reasonable officer would have or

should have accurately perceived that fact.” Torres v. City

of Madera, 648 F.3d 1119, 1124 (9th Cir. 2011). Thus, what

matters is what reasonable officers in Corporal Edwards’ and

Deputy Brown’s positions would have, or should have,

perceived.

Our case law is clear that when a suspect reaches for a

gun or aims a weapon at officers, responding with deadly

force does not violate the Constitution. See, e.g., Est. of

Lopez, 871 F.3d at 1012; Cruz v. City of Anaheim, 765 F.3d

1076, 1078 (9th Cir. 2014). When a suspect “is armed—or

reasonably suspected of being armed,” even “a furtive

movement” can “create an immediate threat” sufficient to

justify the use of deadly force. George v. Morris, 736 F.3d

829, 838 (9th Cir. 2013).

Here, the record is consistent and establishes that it was

reasonable for Edwards and Brown to perceive Sabbe as an

immediate threat.19 It is not disputed that officers had

received multiple reports that Sabbe might be armed and

19

The dissent argues that it is “premature” to grant qualified immunity

because the reasonableness of the officers’ perception depends on the

jury’s “resolution of disputed facts and the inferences it draws

therefrom.” Santos v. Gates, 287 F.3d 846, 855 n.12 (9th Cir. 2002),

overruled on other grounds by Pearson, 555 U.S. at 2233. We are

unpersuaded that there are any such material disputes of fact.

38 SABBE V. WASHINGTON CNTY. BD. OF COMM’RS

intoxicated, and that he had been behaving erratically and in

a hostile manner. Sergeant Braun—who was driving the

V150—testified that just before the shooting, he perceived

that Sabbe had intentionally rammed his pickup into the

V150. Corporal Edwards, who was also in the V150,

testified that he leaned out of the vehicle and saw Sabbe with

a rifle that was not yet pointed at the V150; he shot at Sabbe

when he saw him attempting to aim the rifle. When asked

whether he heard anything before he decided to shoot,

Edwards testified that he heard a shot, which he knew was

not from Brown because Brown had not yet emerged from

the V150’s upper hatch, and that he also heard Braun say that

Sabbe was shooting or aiming at the V150.

Deputy Brown recalled that Sabbe fired a shot, and that

he saw Sabbe pointing a rifle directly at the V150 when he

emerged from the upper hatch; both occurred before he fired

at Sabbe. Brown also heard Braun’s exclamation, and

although he was not sure of Braun’s exact words, he recalled

“something of the nature of ‘he has a rifle he’s pointing at

us.’” From his vantage point of driving the V150, Braun’s

first impression was seeing glass exploding out at him,

followed by the sound of gunfire from his companions. He

testified that he did not think it was possible to see actual

gunfire unless tracer rounds were used, but explained that

“the evidence of the gunfire coming from [the truck] was the

glass exploding out, away from the vehicle.” The dissent

finds it “important” that Braun did not testify at his

deposition that he told the others that Sabbe was shooting or

pointing a rifle at the V150, but it appears that Braun was not

asked that question.

The dissent contends that “[s]ummary judgment is not

appropriate in § 1983 deadly force cases that turn on the

officer’s credibility that is genuinely in doubt.” Newmaker

SABBE V. WASHINGTON CNTY. BD. OF COMM’RS 39

v. City of Fortuna, 842 F.3d 1108, 1116 (9th Cir. 2016); see

also Gonzalez, 747 F.3d at 795. To be sure, we must

carefully examine “all the evidence in the record” in fatality

shooting cases to determine whether an “officer’s story is

internally consistent and consistent with other known facts.”

Gonzalez, 747 F.3d at 795 (citation omitted). But this case

stands in sharp contrast to the facts in Newmaker and

Gonzalez. In Newmaker, the officers’ version of events—

which plainly changed over time— was contradicted by an

autopsy report and video evidence. 842 F.3d at 1116. In

Gonzalez, we could not “simply dismiss the internal

contradictions” in the officers’ testimony that rendered their

asserted “combination of facts . . . physically impossible.”

747 F.3d at 794–95. The record does not support the

dissent’s assertion that Corporal Edwards “changed his

story.” Edwards was asked to describe how he was

positioned before he fired. In response to a follow-on

question specifically asking whether he heard anything

before he decided to fire his weapon, Edwards provided

additional testimony that was entirely consistent with his

previous answer describing how his arms were positioned

when he fired his weapon.

In arriving at our conclusion, we are also mindful that

our law “embod[ies] allowance for the fact that police

officers are often forced to make split-second judgments—

in circumstances that are tense, uncertain, and rapidly

evolving—about the amount of force that is necessary in a

particular situation.” Graham, 490 U.S. at 396–97. On the

facts of this case, the district court correctly ruled that the

officers were entitled to qualified immunity for shooting and

killing Remi Sabbe.

40 SABBE V. WASHINGTON CNTY. BD. OF COMM’RS

IV.

Finally, Sabbe brings a Monell claim against the County

for its failure to train officers on the use of the V150. Monell

established that municipalities can be liable under § 1983 for

constitutional violations because of: (1) official policies; (2)

pervasive practices or customs; (3) failures to train,

supervise, or discipline; or (4) decisions or acts by

policymakers. 436 U.S. at 690–95; Horton ex rel. Horton v.

City of Santa Maria, 915 F.3d 592, 602–03 (9th Cir. 2019).

Qualified immunity does not apply to Monell claims.

Horton, 915 F.3d at 603. But Monell requires that plaintiffs

show the need “for more or different action is so obvious,

and the inadequacy of existing practice so likely to result in

the violation of constitutional rights, that the policymakers

of the [county] can reasonably be said to have been

deliberately indifferent to the need.” Hyun Ju Park v. City

& County of Honolulu, 952 F.3d 1136, 1141 (9th Cir. 2020)

(internal quotation marks, citation, and alteration omitted).

Here, Sergeant Braun testified as the County’s deposition

designee that he had never heard of using an armored vehicle

to execute a PIT maneuver and it was “not something we

ever thought of” and thus “not something we’ve ever

addressed under policy.” Though a jury could decide that

the second PIT maneuver constituted deadly force, the

record does not give rise to a genuine dispute that the

County’s failure to establish guidelines for using the V150

to execute PIT maneuvers rose to the level of deliberate

indifference.

CONCLUSION

For the above reasons, we AFFIRM the district court’s

order granting Defendants’ motion for summary judgment.

SABBE V. WASHINGTON CNTY. BD. OF COMM’RS 41

BERZON, Circuit Judge, concurring in part and dissenting

in part:

On a Friday afternoon in rural Oregon, a neighbor’s 911

call reporting that Remi Sabbe was driving a pick-up truck

erratically, possibly with a gun, on his own property,

triggered a tragic chain of events. 1 The county police

department deployed roughly thirty police officers and two

armored vehicles to the scene, including an armored tank on

loan from the FBI. Despite nearly two hours of observation,

during which time Sabbe’s truck remained stationary and in

sight, no officer attempted to communicate with Sabbe.

Then, when the truck began to move, Defendants drove the

armored tank onto the property without warning or

explanation. 2 In an unprecedented Pursuit Intervention

Technique (“PIT”) maneuver by an armored vehicle, the

tank intentionally rammed the truck twice. By the end of the

confrontation, Sabbe had been shot eighteen times. He died

at the scene.

This lawsuit is a case study in disproportionate law

enforcement response. I concur in Parts II.A and Part IV of

the majority opinion, and in Part III insofar as it holds that

the Defendants are not entitled to summary judgment as to

whether Sabbe shot at the officers in the armored vehicle

before they shot at him. I dissent from the majority’s refusal

1

As the majority recognizes, Remi Sabbe and his brother Kevin were the

primary caretakers of the land, which was owned by the Sabbe family.

Majority Op. at 6. I follow the majority’s lead in referring to Remi as an

owner of the property.

2

I adopt the majority’s usage of the term “Defendants” to refer to the

individual officer defendants named in this case. I note that the named

defendants also include the Washington County Board of

Commissioners, a state entity.

42 SABBE V. WASHINGTON CNTY. BD. OF COMM’RS

to hold Defendants accountable for their clearly unlawful

warrantless entry onto Sabbe’s property and the excessive

uses of force that ultimately resulted in Sabbe’s death.

The majority’s recitation of the disturbing set of events

is for the most part complete and accurate. I recount the

pertinent underlying facts in discussing the various claims at

issue, expressing disagreement in a few instances with the

majority’s characterization of the record.

I.

For reasons that will become clear, I begin with the

excessive force claim based on the fatal shooting. I disagree

with the majority’s conclusion that the officers are entitled

to qualified immunity as to the fatal shooting. Furthermore,

I conclude that there is a disputed issue of material fact as to

whether the officers reasonably perceived Sabbe to pose an

immediate threat. That conclusion is relevant to whether the

officers’ unlawful entry was the proximate cause of Sabbe’s

death, addressed in Part II of this partial dissent.

“An officer’s use of deadly force is reasonable only if the

officer has probable cause to believe that the suspect poses a

significant threat of death or serious physical injury to the

officer or others.” Gonzalez v. City of Anaheim, 747 F.3d

789, 793 (9th Cir. 2014) (en banc) (internal quotation marks

and citations omitted); see also Thomas v. Dillard, 818 F.3d

864, 889 (9th Cir. 2016) (describing the existence of “an

immediate threat to the safety of the officers or others” as

“[t]he most important factor” in determining whether

officers’ use of force is “objectively reasonable”). A

shooting is undoubtedly a use of deadly force. Thus, the

“relevant question for purposes of qualified immunity” is

whether Defendants “could reasonably have believed that

[Sabbe] posed such a threat.” A. K. H. by & through

SABBE V. WASHINGTON CNTY. BD. OF COMM’RS 43

Landeros v. City of Tustin, 837 F.3d 1005, 1011 (9th Cir.

2016).

The officers’ shooting occurred moments after the

conclusion of the second PIT maneuver. The majority

acknowledges that the “uncontested facts do not support a

finding that, as of the time Defendants executed the PIT

maneuvers, Sabbe had committed a serious crime or that he

was fleeing or resisting arrest.” Majority Op. at 29–30. In

fact, at the time of the last PIT maneuver, “Sabbe had come

to a complete stop.” Majority Op. at 25. And at no point

during the PIT maneuvers had the officers attempted to

communicate with Sabbe, so he was not disobeying orders

or resisting arrest.

Thus, whether Sabbe pointed a rifle or shot at the officers

before they opened fire is central to our inquiry. If Sabbe did

not point or shoot a rifle at the officers and was not perceived

to have done so, no reasonable officer would have believed

the use of deadly force was permissible. There would have

been no reason to escalate the use of force from a PIT

maneuver (itself the use of excessive force, as the majority

recognizes, Majority Op. at 32) to the firing of guns.

The majority recognizes that the facts are disputed as to

this critical question, and concludes that, as this is an appeal

from an award of summary judgment to the Defendants, “we

resolve the ‘who shot first’ dispute in the Plaintiff’s favor.”

Majority Op. at 36. In other words, for the purposes of the

present inquiry, Sabbe did not point his rifle or shoot at the

officers. But the majority also asserts that this factual dispute

is “immaterial to our qualified immunity analysis,” because

the officers’ mistaken perception that Sabbe pointed a rifle

and shot at them was reasonable, thus justifying their use of

force. Id.

44 SABBE V. WASHINGTON CNTY. BD. OF COMM’RS

In so holding, the majority fails to recognize that the only

evidence to support Defendants’ assertions about why this

perception was reasonable is the officers’ own testimony.3

So the factual dispute as to what the officers actually heard

and saw is critical to the question whether they made a

reasonable mistake. Granting qualified immunity is

“premature” where the reasonableness of an officer’s

mistake “depend[s] on the jury’s resolution of disputed facts

and the inferences it draws therefrom.” Santos, 287 F.3d at

855 n.12, overruled on other grounds by Pearson v.

Callahan, 555 U.S. 223 (2009); see also, e.g., Demuth v.

County of Los Angeles, 798 F.3d 837, 839 (9th Cir. 2015);

Lacey v. Maricopa County, 693 F.3d 896, 921 n.15 (9th Cir.

2012).

The majority concludes that it was reasonable for

Edwards and Brown to have perceived Sabbe as an

immediate threat because they heard Braun say that Sabbe

was aiming or shooting at the V150. Majority Op. at 37–38.

But the officers’ testimony in the record is inconclusive

about whether Braun actually said that, and, if so, whether

he said that before or after the officers shot Sabbe.

Only Corporal Edwards testified that he heard Braun say,

“he’s shooting at us.” And Edwards’ testimony was

internally contradictory as to this and other matters. Edwards

first asserted that he “leaned out [of the V150] to see what I

could see[,] . . . observed Mr. Sabbe maneuvering his rifle to

point out the passenger side of the car,” and “fired one

round” because Sabbe “was trying to point his rifle at us.”

The attorney examining Edwards then asked, “before you

decided to do that, did anybody yell anything or did you hear

3

The video footage of the incident was filmed from too great a distance

to shed any light on the issue.

SABBE V. WASHINGTON CNTY. BD. OF COMM’RS 45

anything from inside or outside of the V-150?” And Edwards

changed his story. He testified that “before I leaned out,

Corporal Braun told us ‘He’s pointing a rifle at us.’”

Edwards then stated he “heard a gunshot that I knew wasn’t

mine or Deputy Brown’s . . . [that] sounded like it came

from outside the V-150,” and “Corporal Braun confirmed

that ‘[h]e’s shooting at us.’” Edwards next averred that only

then did he lean out of the V150 and fire one round.

Edwards, the only witness to testify he heard Braun say that

Sabbe was shooting at the officers, at first testified that he

“leaned out to see what I could see,” but then said that he

leaned out and shot because he heard gunshots and heard

Captain Braun say that Sabbe was shooting at the officers. A

jury could conclude that if the second version were correct,

Edwards would not have given the earlier, benign account

about why he leaned out of the V150—“to see what I could

see”—and that the two versions were inconsistent.

An examination of the testimony of the other officers in

the V150 reveals further inconsistencies. Deputy Brown

testified that he heard Braun say, “he is pointing a rifle at

us,” as Brown was getting out of the turret of the tank. Brown

also stated that, after “I came out of the turret, I saw the back

rear passenger window break” and “I also saw [Sabbe]

pointing the rifle at—at us.” Yet Braun never testified that

he saw Sabbe with a rifle. He testified that “my first

impression was that the glass [of Sabbe’s truck window]

exploded out towards me, and then I heard the gunfire that

turned out was probably my coworkers firing back.”

Importantly, Braun did not testify that he made any

statements to Edwards or Brown about whether Sabbe was

pointing a rifle or shooting at the officers.

In cases such as this, “where the only witness other than

the officers was killed during the encounter,” we must

46 SABBE V. WASHINGTON CNTY. BD. OF COMM’RS

carefully examine all the evidence in the record to “ensure

that the officer is not taking advantage of the fact that the

witness most likely to contradict his story—the person shot

dead—is unable to testify.” Gonzalez, 747 F.3d at 795

(internal quotation marks and citation omitted). A jury could

reasonably conclude that the officers’ contradictory

testimony was insufficient to support a finding that Corporal

Braun actually told the other officers that Sabbe was

pointing or firing a rifle at the officers. If so, nothing else in

the record supports a finding that the officers reasonably

could have believed that Sabbe pointed or shot a rifle at

them, or that Sabbe otherwise posed an immediate threat of

death or serious harm.

Granting qualified immunity through “[s]ummary

judgment is not appropriate in § 1983 deadly force cases that

turn on the officer’s credibility that is genuinely in doubt.”

Newmaker v. City of Fortuna, 842 F.3d 1108, 1116 (9th Cir.

2016). Viewing the evidence in the light most favorable to

Sabbe, Sabbe did not point a rifle or shoot at the officers, nor

did the officers reasonably believe that he did. Under those

circumstances, I would hold that Defendants were not

entitled to summary judgment as to whether the fatal

shooting of Sabbe was excessive force in violation of the

Fourth Amendment, or whether they are entitled to qualified

immunity.

II.

The majority disposes of the unlawful entry claim

without assessing its merits by concluding that, even if the

entry violated the Fourth Amendment, it was not the

proximate cause of Remi Sabbe’s death. Majority Op. at 14.

Specifically, the majority concludes that there is no genuine

dispute about whether the officers reasonably perceived that

SABBE V. WASHINGTON CNTY. BD. OF COMM’RS 47

Sabbe pointed a rifle or shot at them before they opened fire,

and—in something of a non sequitur, given the holding that

for purposes of this appeal we assume that Sabbe did not fire

the first shot—that Sabbe’s act was a superseding cause of

his death. Id. I would hold that Defendants’ entry onto

Sabbe’s property was a clearly established violation of the

Fourth Amendment, as to which Defendants are not entitled

to qualified immunity. I would also hold that there was no

superseding cause with respect to liability for Sabbe’s death

as a result of the illegal entry because, as just discussed,

whether the officers reasonably perceived Sabbe to have shot

or pointed a rifle at them is disputed.

Further, even assuming that the officers’ perceptions that

most immediately led to the shooting were reasonable, a

reasonable perception is not a superseding cause. A causal

link for section 1983 purposes is broken only by something

that actually happened, not by an event that did not happen

but was reasonably perceived to have occurred. See Mendez

v. County of Los Angeles, 897 F.3d 1067, 1081 (9th Cir.

2018). Moreover, it was eminently foreseeable that the entry

of an unmarked, armored tank onto the property, without any

prior attempts to communicate with Sabbe, and no attempt

to do so once on the property, would lead to the use of deadly

force resulting in Sabbe’s death.

A.

It is a “basic principle of Fourth Amendment law” that

warrantless searches of the home or the curtilage

surrounding the home are “presumptively unreasonable.”

Payton v. New York, 445 U.S. 573, 586 (1980). Defendants

do not dispute that the entry onto Sabbe’s property

constituted a Fourth Amendment search without warrant or

48 SABBE V. WASHINGTON CNTY. BD. OF COMM’RS

consent. 4 Instead, Defendants argue that either the exigency

or the emergency exception to the warrant requirement

applied because, at the time of entry, the officers suspected

that Sabbe had committed the crime of unlawful use of a

weapon, and because they perceived his movement as a

threat to the officers positioned at the perimeter of the

property and to the general public. Defendants assert that

they entered only after Sabbe’s truck began to move to

“contain Sabbe on the property.”

The exigency and emergency exceptions are “narrow,”

and their boundaries are “rigorously guarded.” United States

v. Stafford, 416 F.3d 1068, 1073 (9th Cir. 2005). The

exigency exception is based on the “officers’ investigatory

4

The district court noted that “[i]t is quite possible that the field Sabbe

drove on is more appropriately characterized as ‘open fields’ rather than

‘curtilage,’” but concluded that “the record on this question is

insufficient.” Much of the Sabbes’ large property is open field or wooded

forest, but it also contains the Sabbes’ childhood home, a barn, a granary,

and a shed. It is undisputed that the V150 entered Sabbe’s property

through “a driveway that led up to [the] house.” Evidence in the record

indicates that the entrance to the driveway was blocked with a chain and

marked with “no trespassing” signs, although Sergeant Braun, who drove

the V150, later testified that he did not see any signs.

In defining the extent of curtilage, courts look to “the proximity of the

area claimed to be curtilage to the home, whether the area is included

within an enclosure surrounding the home, the nature of the uses to

which the area is put, and the steps taken by the resident to protect the

area from observation by people passing by.” United States v. Dunn, 480

U.S. 294, 301 (1987). “[T]he curtilage of a home in a rural area could

extend farther than the curtilage of a home in an urban or suburban

setting.” United States v. Johnson, 256 F.3d 895, 902 (9th Cir. 2001).

The record indicates there is at least a factual dispute as to whether the

driveway constitutes curtilage. Viewing the facts in the light most

favorable to Sabbe at summary judgment, I assume that the driveway is

curtilage to which the Fourth Amendment applies.

SABBE V. WASHINGTON CNTY. BD. OF COMM’RS 49

function,” allowing them to make a warrantless entry if they

have (1) “probable cause to believe that a crime has been or

is being committed,” and (2) “reasonable belief that their

entry is ‘necessary to prevent . . . the destruction of relevant

evidence, the escape of the suspect, or some other

consequence improperly frustrating legitimate law

enforcement efforts.’” Hopkins v. Bonvicino, 573 F.3d 752,

763 (9th Cir. 2009) (quoting United States v. McConney, 728

F.2d 1195, 1199 (9th Cir. 1984) (en banc)). The emergency

exception “derive[s] from police officers’ community

caretaking function,” Espinosa v. City & County of San

Francisco, 598 F.3d 528, 534 (9th Cir. 2010), and permits

them to make a warrantless entry if they have an “objectively

reasonable basis for concluding that there is an immediate

need to protect others or themselves from serious harm.”

United States v. Snipe, 515 F.3d 947, 952 (9th Cir. 2008).

Neither the exigency nor the emergency exception justified

Defendants’ intrusion on Sabbe’s property.

(i)

(a)

The exigency exception does not apply, first, because the

officers had no probable cause to believe that Sabbe had or

was in the process of committing a crime. See Hopkins, 573

F.3d at 763. Defendants do not seriously argue that they did.

Instead, their brief on appeal asserts only that they

“suspected Sabbe had committed the crime of Unlawful Use

of a Weapon.” See Or. Rev. Stat. § 166.220. And Sergeant

Braun testified that he “had reasonable suspicion to talk to

him about potential crimes,” not that there was probable

cause that any crime had been committed. The record

demonstrates that the claimed suspicion was unsupported.

And in any case, “mere suspicion” or “even strong reason to

50 SABBE V. WASHINGTON CNTY. BD. OF COMM’RS

suspect are not enough” to establish probable cause. United

States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007)

(cleaned up) (quoting McKenzie v. Lamb, 738 F.2d 1005,

1008 (9th Cir. 1984)).

During the two hours that passed between Lloyd

Wetzel’s initial 911 call at 1:33 PM and Defendants’ entry

at 3:29 PM, the officers knew that a few shots had been heard

in the area of Sabbe’s property and that Sabbe possibly had

a gun. Between 1:47 and 1:54 PM, Wetzel and Officer

Jentzsch, the first officer to respond to Wetzel’s 911 call,

reported hearing “a couple shots.” But neither could attribute

the shots to Sabbe, nor did they see in which direction the

shots had been fired. After “trying to get as far away as [he

could]” from the scene, Jentzsch, who testified that at that

point he was approximately 300 yards away from Sabbe,

reported to dispatch that it “looked like he was holding a rifle

[and] pointing it towards the [intersection].” 5 That is the

extent of any officer’s observation of conduct potentially

related to the use of a weapon. At 2:05 PM, Jentzsch relayed

that he had lost sight of Sabbe. The officers remained

unaware of Sabbe’s location until 3:23 PM, when they

realized that Sabbe was inside his truck, which had remained

stationary and in sight during the officers’ monitoring of the

property. 6

In the meantime, the officers had acquired information

that substantially undermined any suspicion they may have

5

Jentzsch later testified at his deposition that he saw Sabbe “holding

something long and black in between both of his hands.” The implication

is that Sabbe was just holding, not pointing, whatever he had in his hands.

6

At 2:33 PM, an officer had reported to dispatch, “We have eyes on the

truck. It looks like it is running, but we can’t really see inside.”

SABBE V. WASHINGTON CNTY. BD. OF COMM’RS 51

had that Sabbe was committing or had committed the crime

of unlawful use of a weapon. By 3 PM, nearly thirty minutes

before Defendants’ unlawful entry, officers had established

contact with April Sabbe, the registered owner of the truck,

who told them the suspect was likely her husband Remi, and

that he was an owner of the property.” 7 As Sergeant Braun,

the driver of the tank, recognized in his deposition, Sabbe

had the right to possess and discharge a firearm on his own

property. 8 Oregon allows the possession of firearms within

a person’s residence or place of business without permit or

license, and generally permits shooting on private property

that is not “within city limits.” See Or. Rev. Stat.

§ 166.250(2)(b); id. § 166.220(1). The Sabbe property was

not within those limits. 9 Under those circumstances, the

crime of unlawful use of a weapon applies only if there is an

“attempt[]” or “intent to use [the weapon] unlawfully against

7

The audio recording of the radio traffic shows that Lieutenant Lotman

relayed the contents of the conversation with April Sabbe to the dispatch

as follows: the suspect in the truck was “probably [April’s] husband

Remi”; he was “associated with this property,” which had been the

subject of recent burglaries; and that he had been “recently drinking,

doesn’t like police, history of elude [sic] and went down there to protect

his property.”

8

Braun testified that he knew of a property dispute between Remi and

his brother over how the property was being leased or controlled, but that

he didn’t know “where that information [came] from.” He agreed that if

Sabbe owned and was not leasing the property, then he had the right to

possess and discharge a firearm there.

9

Kevin Sabbe, Remi’s brother, testified in his deposition that the family

used to hunt regularly on the property as well as on Wetzel’s neighboring

property.

52 SABBE V. WASHINGTON CNTY. BD. OF COMM’RS

another.” Or. Rev. Stat. § 166.220(1)(a). 10 There was no

evidence that Sabbe shot at or aimed at anyone.

In other words, even if Sabbe did possess a rifle and had

used it on his property earlier that day, that use would not,

without more, have been unlawful. There was no indication

from any officer’s observation before the entry onto the

Sabbe property that Sabbe had attempted or intended to use

a weapon against another person, on the property or off. Nor

was it likely that he could have shot at or aimed at anyone

on the property; April Sabbe had informed the officers that

the property was supposed to be vacant. Braun

acknowledged that, if Sabbe had “walked out to us and said

howdy and explained who he was, we’d all get in our

vehicles and turn around and drive away”; Jentzsch said

essentially the same thing regarding his earlier encounter.

Viewing the record in the light most favorable to the

plaintiff, Peck v. Montoya, 51 F.4th 877, 887 (9th Cir. 2022),

the only possibility that Sabbe was committing a crime was

10

Oregon law states that “[a] person commits the crime of unlawful use

of a weapon if the person:

(a) Attempts to use unlawfully against another, or

carries or possesses with intent to use unlawfully

against another, any dangerous or deadly

weapon . . . or

(b) Intentionally discharges a firearm, blowgun, bow

and arrow, crossbow or explosive device within

the city limits of any city or within residential

areas within urban growth boundaries at or in the

direction of any person, building, structure or

vehicle within the range of the weapon without

having legal authority for such discharge.”

Or. Rev. Stat. § 166.220(1).

SABBE V. WASHINGTON CNTY. BD. OF COMM’RS 53

if he was attempting or intending to use the weapon

unlawfully against someone else. Or. Rev. Stat.

§ 166.220(1)(a). There was no probable cause that he was.

At best, he “might” have had a gun pointed at a roadway, not

a person, and that assertion was based on observing from 300

yards away that he was holding something long and black in

his hands. There is no doubt that defendants lacked probable

cause to conclude that Sabbe had committed any crime.

(b)

In any case, “[e]ven if the officers had probable

cause . . . more is required to justify a warrantless entry”

under the exigency exception. Hopkins, 573 F.3d at 768

(emphasis omitted). “No amount of probable cause can

justify a warrantless search or seizure absent ‘exigent

circumstances.’” United States v. Johnson, 256 F.3d 895,

907 (9th Cir. 2001) (per curiam) (en banc) (internal

quotation marks, alteration, and citation omitted).

Defendants have not elicited “specific and articulable facts

to justify the finding” of any exigency here. Sandoval v. Las

Vegas Metro. Police Dep’t, 756 F.3d 1154, 1161 (9th Cir.

2014) (quoting LaLonde v. Cnty. of Riverside, 204 F.3d 947,

957 (9th Cir. 2000)).

Exigent circumstances encompass situations that are

“few in number and carefully delineated,” in which “the

exigencies of the situation make the needs of law

enforcement so compelling that the warrantless search is

objectively reasonable under the Fourth Amendment.”

United States v. Struckman, 603 F.3d 731, 743 (9th Cir.

2010) (internal quotation marks and citations omitted). Such

circumstances are those “that would cause a reasonable

person to believe that entry . . . was necessary to prevent

physical harm to the officers or other persons, the destruction

54 SABBE V. WASHINGTON CNTY. BD. OF COMM’RS

of relevant evidence, the escape of the suspect, or some other

consequence improperly frustrating legitimate law

enforcement efforts.” United States v. McConney, 728 F.2d

1195, 1199 (9th Cir. 1984) (en banc), overruled on other

grounds by Est. of Merchant v. Comm’r, 947 F.2d 1390,

1392–93 (9th Cir. 1991).

Defendants argue that exigent circumstances existed

because “[t]hey perceived Sabbe’s movement as a threat to

the officers positioned at the perimeter of the property, and

a threat to the general public if Sabbe should enter a public

roadway.” Their warrantless entry was necessary,

defendants assert, to “contain Sabbe on the property.”

The evidentiary record provides no basis for any such

perception. A few minutes after the officers discovered that

Sabbe was inside the truck at 3:23 PM, an officer reported to

dispatch that Sabbe was “moving inside the cab,” and then

that the truck began “moving westbound.” 11 But the fact that

Sabbe began to drive on his own property doesn’t establish

an objectively reasonable basis for concluding that

warrantless entry was necessary to prevent physical harm to

the officers or others.

First, no evidence suggests that Sabbe intended to leave

his property or approach the officers stationed at its

perimeter. As the majority notes, earlier in the day, at 1:33

PM, “Sabbe was reported to be driving erratically and

11

April Sabbe argues that it is disputed whether Defendants entered the

property after Sabbe’s truck moved or after they learned Sabbe was

moving inside his truck. The Computer Aided Dispatch (“CAD”) report

of the radio traffic records only an officer stating “subj moving inside

truck” before Defendants enter the property. However, the more

comprehensive audio recording of the radio traffic indicates that an

officer reported seeing Sabbe’s truck move before Defendants’ entry.

SABBE V. WASHINGTON CNTY. BD. OF COMM’RS 55

tearing up the muddy field, but he was on his own property.”

Majority Op. at 28 (emphasis added). And the officer who

radioed at 3:27 PM, that Sabbe’s truck began “moving

westbound” did not report that Sabbe was heading towards

the property perimeter or a public roadway, nor does any

other evidence in the record so indicate. 12 During the nearly

two hours that officers observed the property before

Defendants’ entry, Sabbe had never tried to leave. In fact,

Sabbe’s initial reaction upon seeing Officer Jentzsch’s

marked police car near his property was “to reverse the truck

and retreat into his own field.” Majority Op. at 28 (emphasis

in original). Moreover, the officers knew that Sabbe was

there to “protect his property” after it had suffered a series

of recent burglaries; with that motivation why would Sabbe

want to leave his property unattended?

Second, there is no evidence that, if Sabbe did leave his

property, doing so would have presented an immediate threat

to officers or the general public and so justify Defendants’

entry within a minute of Sabbe’s movements. As one officer

reported to dispatch after speaking with April Sabbe, “we

have no information that he’s looking to harm anyone.”

Although the officers were told before they arrived that shots

had been heard and that Sabbe might have a gun, no further

gunfire had been heard in the intervening hour and a half.

There is also no indication that, when Sabbe’s truck began

to move at 3:27 PM, Sabbe was holding a weapon, much less

pointing it at anyone or toward a public roadway.

12

Evidence in the record indicates that the driveway, where the V150

was stationed, was the only means of entry or exit from the Sabbe

property. According to Braun, a “huge ditch” prevented access to most

of Sabbe’s property.

56 SABBE V. WASHINGTON CNTY. BD. OF COMM’RS

Moreover, by the time of Defendants’ entry, actions had

been taken to reduce significantly any risk of danger to the

public or to the surrounding officers. At least thirty police

units had arrived on the scene. Civilian traffic around the

property had been largely shut down. 13 Defendants do not

explain why, in light of these measures, a warrantless entry

onto Sabbe’s property was necessary to address whatever

threat Sabbe might have posed, especially without

attempting any other type of intervention first. Most notably:

According to Defendants, the officers’ goal was

communication. Yet no attempt at communication with

Sabbe—by bullhorn, loudspeaker, or otherwise—was ever

made.

Defendants do not assert that Sabbe’s potential

movement off the property would have constituted any other

type of exigent circumstance, such as the escape of the

“suspect.” Nor could they. First, there was no probable cause

to arrest Sabbe, and so no basis for concern that he might

escape. Second, there is no suggestion in the record that the

thirty police units surrounding the Sabbe property would be

unable to capture Sabbe if he attempted to escape off the

property.

13

The majority represents that “traffic continued to pass by on the road

abutting the edge of the property” at the time the PIT maneuver was

executed. Majority Op. at 27. According to the radio traffic, Officer

Cooper reported at around 3:23 PM that there was still a steady flow of

traffic and requested that it be shut down. In discussing the decision to

enter the property with the V150, Sergeant Bowman testified that,

shortly after that call, “we were able to adjust and get that shut down,

too.” Bowman stated that they were eventually successful in shutting

down all the roads around the property, apparently before the PIT

maneuver occurred.

SABBE V. WASHINGTON CNTY. BD. OF COMM’RS 57

In sum, Defendants lacked both probable cause and

exigent circumstances. The exigency exception cannot

justify Defendants’ warrantless entry onto the Sabbe

property.

(ii)

Defendants’ assertion of the emergency exception rests

upon similar grounds to their assertion of the exigency

exception and fails for similar reasons. Pursuant to the

emergency exception, “law enforcement officers may enter

a home without a warrant to render emergency assistance to

an injured occupant or to protect an occupant from imminent

injury.” Brigham City v. Stuart, 547 U.S. 398, 403 (2006).

There must be “an objectively reasonable basis for

concluding that there is an immediate need to protect others

or themselves from serious harm.” Hopkins, 573 F.3d at 764

(emphasis omitted) (quoting Snipe, 515 F.3d at 951–52).

The Defendants had no basis to believe that there was

anyone on the property other than Sabbe, nor any ground for

fearing that he had been or was about to be injured. 14 Rather,

like their position regarding the exigency exception,

Defendants’ argument concerning the emergency exception

rests on the notion that Sabbe might leave the property and

pose a threat to officers and the general public. The

emergency exception permits warrantless entry upon the

premises when officers “reasonably believe that a person

within is in need of immediate aid.” Mincey v. Arizona, 437

U.S. 385, 393 (1978) (emphasis added); see also Michigan

14

April Sabbe had informed at least some of the officers that Sabbe was

likely alone, and various officers radioed that the property should be

vacant. Although earlier in the day Jentsch reported that Sabbe had

“crashed into a tree,” he also described Sabbe “getting out on foot” and

stated that no medical support was needed.

58 SABBE V. WASHINGTON CNTY. BD. OF COMM’RS

v. Fisher, 558 U.S. 45, 47–48 (2009). Allowing warrantless

entry to prevent potential harm off-premises would stretch

the “narrow” and “rigorously guarded” boundaries of the

exception, creating a vast gap in the warrant requirement

applicable to entry into homes for all circumstances in which

a suspect is feared to be dangerous to the public outside the

home. Hopkins v. Bonvicino, 573 F.3d 752, 763 (9th Cir.

2009) (quoting United States v. Stafford, 416 F.3d 1068,

1073 (9th Cir. 2005)). The case law sanctions no such fissure

in “the ancient adage that a man’s house is his castle.”

Georgia v. Randolph, 547 U.S. 103, 115 (2006) (quoting

Miller v. United States, 357 U.S. 301, 307 (1958)).

In any event, the evidence in the record does not provide

any basis to believe that Sabbe was preparing to leave the

property; that if he did, there was a reasonable basis to fear

he would have attacked any of the thirty officers surrounding

the property; or that that horde of law enforcement officers

could not have dealt with the danger as well off the private

property as on. Yet, a minute after Sabbe’s truck began to

move, officers entered his property without a warrant, in two

armored vehicles. 15 No emergency justified Defendants’

unlawful, warrantless entry onto Sabbe’s property.

(iii)

Having concluded that Defendants’ warrantless entry

violated Sabbe’s Fourth Amendment right, I would also

conclude that Defendants are not entitled to qualified

immunity, because that right was clearly established at the

time of the violation. See Peck v. Montoya, 51 F.4th 877, 887

15

One of the armored vehicles, an armored SWAT truck, called the

BEAR, got stuck in the mud just after entering the field, and was not

further deployed. Unlike the V150, the BEAR had police markings and

was equipped with a public address system.

SABBE V. WASHINGTON CNTY. BD. OF COMM’RS 59

(9th Cir. 2022). “Among constitutional rules, few are as well

established, frequently applied, and familiar to police

officers as the warrant requirement and its exceptions.”

Bonivert v. City of Clarkston, 883 F.3d 865, 873 (9th Cir.

2018).

There is no shortage of case law establishing that, to rely

on the exigency exception, the government must prove that

officers had probable cause to believe that a crime has been

or is being committed. See, e.g., Sandoval v. Las Vegas

Metro. Police Dep’t, 756 F.3d 1154, 1161 (9th Cir. 2014);

Hopkins, 573 F.3d at 766–67; Johnson, 256 F.3d at 905. Yet,

Defendants do not seriously argue that they had probable

cause; they assert only that officers “suspected” Sabbe had

committed a crime, but point to no explanation or evidence

to support that suspicion. See supra Part II.A.i.a.

Similarly, the officers were on notice that the emergency

exception only applies if there is an objectively reasonable

basis for concluding there exists an immediate need to

protect themselves or others from serious harm on the

property. See, e.g., Ames v. King Cnty., 846 F.3d 340, 350–

52 (9th Cir. 2017) (vehicle occupant overdosed in a suicide

attempt); Snipe, 515 F.3d at 952–53 (emergency call by a

“hysterical” caller screaming “[g]et the police over here

now”); Brigham City, 547 U.S. at 403–07 (officers

witnessed ongoing violence within the home). The facts of

this case present a stark contrast to the emergency situations

discussed in the established case law. See Hopkins, 573 F.3d

at 766 (collecting cases). The record contains no evidence

that Sabbe himself was in need of medical attention, or that

he was endangering anyone on the property. No reasonable

officer could have believed the circumstances of this case

justified application of the emergency exception.

60 SABBE V. WASHINGTON CNTY. BD. OF COMM’RS

B.

The majority sidesteps any acknowledgment of this

egregious breach of the Fourth Amendment by asserting

that, even if Defendants’ warrantless entry was unlawful, it

was not the proximate cause of Sabbe’s death.

As an initial matter, whether Sabbe’s death was

proximately caused by the warrantless entry is relevant to the

question of damages, not liability. For purposes of section

1983 liability, the relevant question is whether the

defendants’ actions caused a deprivation of Sabbe’s

constitutional rights, not whether they caused his death.

Arnold v. Int’l Bus. Machines Corp., 637 F.2d 1350, 1355

(9th Cir. 1981). And here the right at issue is the right to be

free from unlawful entry. 16

Furthermore, “a plaintiff in a civil rights action under

section 1983 is entitled to nominal damages as a matter of

law if she obtains a favorable jury verdict.” Floyd v. Laws,

929 F.2d 1390, 1401 (9th Cir. 1991) (citing Carey v. Piphus,

435 U.S. 247 (1978)). See also George v. City of Long

Beach, 973 F.2d 706, 708 (9th Cir. 1992) (holding that the

plaintiff was entitled to judgment and nominal damages on

his section 1983 claim where the court concluded that an

officer’s warrantless entry violated the Fourth Amendment,

16

The majority opinion states that “April Sabbe premises her warrantless

entry claim—like all three of her Fourth Amendment claims—

exclusively on Remi Sabbe’s death.” Majority Op. at 15. But the

plaintiff’s opening brief argues that a reasonable jury could find three

separate constitutional violations occurred, including that the officers

“illegally entered Sabbe’s property without permission, a warrant, or

exigency, in violation of the Fourth Amendment.” And while the reply

brief responds to the defendants’ no-proximate cause argument, it does

not suggest that liability for the unconstitutional entry depends on

causation being established.

SABBE V. WASHINGTON CNTY. BD. OF COMM’RS 61

even though the plaintiff’s injuries were not caused by the

illegal entry). A district court errs when it dismisses a section

1983 damages claim for lack of actual damages if there was

a deprivation of a constitutional right. Draper v. Coombs,

792 F.2d 915, 921–22 (9th Cir. 1986).

In any event, I disagree with the majority as to whether

the armored vehicle’s unconstitutional entry on the property

was a proximate cause of Sabbe’s death. The majority

reasons that because the officers reasonably perceived that

Sabbe pointed a rifle and shot at them once the armored

vehicle was on the property, this “was surely a superseding

cause” of the fatal shooting of Sabbe. Majority Op. at 16. As

I explained earlier, see supra Part I, I would hold that the

Defendants were not entitled to summary judgment as to

whether their perceptions about Sabbe’s actions were

reasonable. I would therefore hold that no superseding cause

was established for summary judgment purposes.

But even accepting the majority’s conclusion that the

officers’ perceptions were established on summary

judgment to be reasonable, there was still no superseding

cause. True, an actual intentional attempt by an individual to

harm law enforcement officers can sever the causal chain

between a constitutional violation and the victim’s injury.

See, e.g., Bodine v. Warwick, 72 F.3d 393, 400 (3d Cir.

1995). But the majority acknowledges, and I agree, that

whether Sabbe did point a rifle or shoot first is disputed, so

we assume for purposes of the summary judgment appeal

that he did not. See Majority Op. at 36.

If he did not, there could be no superseding cause,

whatever the officers thought, reasonably or otherwise. “A

superseding or intervening cause involves a shifting of

responsibility away from a party who would otherwise have

62 SABBE V. WASHINGTON CNTY. BD. OF COMM’RS

been responsible for the harm that occurs.” Mendez, 897

F.3d at 1081 (citing W. Page Keeton et al., Prosser and

Keeton on Torts § 44 (5th ed. 1984)). That shifting of

responsibility ordinarily requires an intentional act. Where

there is no such act—as the majority assumed here, viewing

the facts most favorable to Sabbe—the misperception,

reasonable or otherwise, that there was such an act is not a

basis for shifting the blame to the victim because of

something (we are assuming) he did not do. Id. Further, “an

officer has a duty not to enter in part because he or she might

misperceive a victim’s innocent acts as a threat and respond

with deadly force.” Id.

The principle that the misperception of innocent acts

does not break the causal chain has particular application

where the officers create the conditions under which those

actions are likely to be misperceived as threatening. In

Mendez, for example, officers entered the shack where the

Mendezes resided without a warrant, unannounced, and with

weapons drawn. Id. at 1072. “The officers were on alert,

believing themselves to be searching for an armed

individual.” Id. at 1078. Moments later, the officers shot

both occupants after Angel Mendez moved a BB gun from

the futon where he had been sleeping to the floor. Id. at 1081.

The court reasoned that Mendez’s action in moving the gun

was not a superseding cause of the shooting because it was

foreseeable that the officers’ mode of entry could lead them

to mistake an innocent act as a threat. Id. at 1081.

As in Mendez, Defendants’ mode of entry here

foreseeably exacerbated the risk of misperceiving Sabbe’s

actions. As Braun explained, the V150 is a military-grade

“piece of armor.” The V150 not only has no public address

system but it is hard to hear radio transmissions or

conversation within the vehicle while inside it, or to see what

SABBE V. WASHINGTON CNTY. BD. OF COMM’RS 63

is happening in the surrounding area. Defendants’ entry with

the V150 thus reduced the officers’ ability to perceive

correctly Sabbe’s movements, react appropriately to any

perceived threat, and de-escalate confrontation. The

officers’ misperception of the threat posed by Sabbe, leading

to Sabbe’s fatal shooting, was a foreseeable consequence of

their choice and method of entry.

So, whether or not the officers reasonably perceived that

Sabbe pointed his gun or shot at them, I would hold that their

perception was not a superseding cause. Where the officers’

conduct “creates or increases the foreseeable risk of harm

through the intervention of another force, and is a substantial

factor in causing the harm, such intervention is not a

superseding cause.” Restatement (Second) of Torts § 442A

(1965). Accordingly, “an event will be a superseding cause

only if it is extraordinary in retrospect.” Mendez, 897 F.3d at

1082.

Nothing about Sabbe’s conduct was extraordinary under

the circumstances. The Supreme Court has held that the

Second Amendment “elevates above all other interests the

right of law-abiding, responsible citizens to use arms in

defense of hearth and home.” District of Columbia v. Heller,

554 U.S. 570, 635 (2008). “[I]n light of the protections

afforded by the Second Amendment, which are at their

height where defense of one’s home is at stake, it can be

expected that some individuals will keep firearms . . . to

defend themselves against intruders.” Mendez, 897 F.3d at

1078.

By the time Defendants decided to enter the property,

they were aware that Sabbe was probably an owner of the

property, there to “protect” it after recent burglaries. As the

Supreme Court has noted, “[b]urglary is dangerous because

64 SABBE V. WASHINGTON CNTY. BD. OF COMM’RS

it can end in confrontation leading to violence.” Sykes v.

United States, 564 U.S. 1, 9 (2011), overruled on other

grounds by Johnson v. United States, 576 U.S. 591 (2015).

The officers’ knowledge that Sabbe was particularly on alert

for intruders and, possibly, (legally) armed should have

indicated that the likelihood of violent confrontation was

high. The risk of a violent confrontation when an unmarked

armored vehicle showed up on Sabbe’s property

unannounced—and without any prior communication

between Sabbe and law enforcement—was eminently

foreseeable.

Other factors support the conclusion that Sabbe’s death

was a foreseeable consequence of the unlawful entry.

Significantly, the V150 was unmarked and, viewing the

record most favorably to Sabbe, its emergency lights were

not visible. Thus, Sabbe reasonably may not have

understood that the V150 was a police vehicle, perceiving

only a dangerous-looking military vehicle holding

unidentified intruders. As the majority describes, “the V150

resembles a tank” and weighs several times more than a

typical police cruiser. Majority Op. at 5, 8.

Even if Sabbe did understand the V150 was a law

enforcement vehicle, he had no reason to understand the

purpose of the officers’ trespass. As discussed, see supra

Part II.A.i.a, the record does not demonstrate there was

probable cause that Sabbe had been or was committing a

crime. And, again, during the nearly two hours that they

observed his property before their entry, the officers never

explained their presence, conveyed instructions, or issued

warnings, and the tank had no capacity to do so.

Under these circumstances, it was surely foreseeable that

the officers would use force, justifiably or otherwise, after

SABBE V. WASHINGTON CNTY. BD. OF COMM’RS 65

entering the property. “Especially where officers are armed

and on alert, violent confrontations are foreseeable

consequences of unlawful entries.” Mendez, 897 F.3d at

1078 (emphasis in original). A fatal shooting was well within

the scope of risk the Defendants’ unconstitutional, military-

style intrusion created.

I would hold that Defendants’ unannounced, aggressive

mode of entry onto Sabbe’s property in an unmarked

military vehicle, with no means of communicating with the

property owner, was a proximate cause of Sabbe’s death. In

particular, I would hold that the officers’ misperceptions of

Sabbe’s actions could not have been a superseding cause of

his death.

III.

As to the excessive force claim premised upon the PIT

maneuvers by the V150, I concur in the majority’s

conclusion that a reasonable jury could find that the second

PIT maneuver constituted excessive force in violation of the

Fourth Amendment because “[e]ach of the [] Graham factors

weighs in Plaintiff’s favor.” Majority Op. at 29. 17 As the

majority recognizes, the “uncontested facts do not support a

17

Neither the district court nor the majority opinion addresses whether

there is sufficient evidence in the record for a reasonable jury to conclude

that Sabbe’s death was proximately caused by the PIT maneuver. The

video footage shows that Sabbe attempted to leave his truck after the first

attempted maneuver, and that the second maneuver appears to have

caused the driver-side door to slam shut onto his leg. However, there is

no evidence as to whether he sustained injuries from those collisions;

rather, the evidence is consistent with the conclusion that Sabbe’s cause

of death was being shot.

Although the absence of proximate cause may limit the damages

available for the excessive force claim tied to the PIT maneuver, it does

not bar liability.

66 SABBE V. WASHINGTON CNTY. BD. OF COMM’RS

finding that, as of the time Defendants executed the PIT

maneuvers, Sabbe had committed a serious crime or that he

was fleeing or resisting arrest.” Majority Op. at 29–30. And

as the majority also holds, “we cannot say that the video

shows that Sabbe initiated the first collision,” Majority Op.

at 28, so the record does not establish that Sabbe was an

immediate danger to the officers in the V150 when they

instigated the second PIT maneuver. Finally, the majority

concludes, and I agree, that a reasonable jury could find that

the existence of a less intrusive alternative—requesting

equipment to attempt to communicate with Sabbe—and the

officers’ failure to warn Sabbe before using potentially

deadly force weighed against them. Majority Op. at 30–32.

The majority holds, however, that Defendants are

entitled to qualified immunity on the PIT maneuver

excessive force claim, on the ground that there is no specific

precedent “quantifying or characterizing the degree of force

involved in using an armored vehicle to execute a PIT

maneuver” or “that would have clearly established that the

officers’ use of the V150 under these circumstances was

unconstitutional.” Majority Op. at 33. I cannot agree.

We must, to be sure, be “mindful of the Supreme Court’s

repeated admonition not to define the right at issue at a high

level of generality.” Orn v. City of Tacoma, 949 F.3d 1167,

1178 (9th Cir. 2020). Thus, a plaintiff can most easily show

that an officer’s conduct was clearly established as unlawful

by pointing to “[p]recedent involving similar facts.” Kisela

v. Hughes, 138 S. Ct. 1148, 1153 (2018). However, in

“obvious case[s],” Rivas-Villegas v. Cortesluna, 142 S. Ct.

4, 8 (2021) (per curiam), officials “can still be on notice that

their conduct violates established law even in novel factual

circumstances,” Hope v. Pelzer, 536 U.S. 730, 741 (2002).

A “general constitutional rule already identified in the

SABBE V. WASHINGTON CNTY. BD. OF COMM’RS 67

decisional law may apply with obvious clarity to the specific

conduct in question, even though the very action in question

has not previously been held unlawful.” Bonivert, 883 F.3d

at 872 (internal quotation marks, alterations, and citation

omitted). Otherwise, law enforcement behavior that is

unprecedented precisely because it is so obviously

dangerous that no law enforcement entity has previously

attempted it becomes insulated from liability, leaving

citizens to bear their own losses from obviously high risk

and unjustified uses of force.

The officers here stated that the force they administered

by repeatedly ramming the V150 into Sabbe’s vehicle was

unprecedented. Braun testified at his deposition: “I don’t

know of anywhere in the nation where a piece of armor has

been used to do a PIT maneuver, except for [here]. It’s not

conceivable, not something we ever thought of, not

something we’ve ever addressed under policy.” That

Defendants’ conduct was “not conceivable” is indicative of

the perfectly obvious risks of deadly force presented by such

a tactic.

Any reasonable officer would have understood that using

an extremely large and heavy armored tank to immobilize a

moving civilian vehicle by repeatedly striking it “creates a

substantial risk of causing death or serious bodily injury.”

Smith v. City of Hemet, 394 F.3d 689, 693 (9th Cir. 2005)

(en banc). Braun acknowledged that the use of the V150 in

a PIT maneuver could be “highly probable to result in great

bodily injury or death.” As he explained, “a thousand

different variables,” including a vehicle’s speed and size, can

affect the amount of force involved in a PIT maneuver. Cf.

Scott v. Harris, 550 U.S. 372, 375 n.1 (2007) (noting that the

defendant officer decided not to execute a PIT maneuver

because he was “concerned that the vehicles were moving

68 SABBE V. WASHINGTON CNTY. BD. OF COMM’RS

too quickly to safely execute the maneuver”). The weight

and size of the V150—more than seven tons and more than

seven feet tall—indubitably vastly increases the force

transmitted by a PIT maneuver as compared with the force

of a PIT maneuver executed with an ordinary police car. The

video footage of the incident confirms that assessment,

showing that “even at low speed, the impact [of the V150’s

collision with Sabbe’s truck] bent the truck’s bed inward,

mangled the tailgate, and partially detached the rear

bumper . . . [and] spun the truck 180 degrees.” Majority Op.

at 24. A reasonable officer would have understood that the

use of the V150 to ram Sabbe’s truck the second time

constituted significant force far greater than the typical PIT

maneuver, and was likely to cause death or serious physical

injury.

Affirming the grant of qualified immunity in this case

with regard to the second PIT maneuver does “not further

the purpose of qualified immunity—to balance the

competing need to hold public officials accountable . . . and

the need to shield officials from harassment, distraction, and

liability.” Bonivert, 883 F.3d at 873. To the contrary, it

exonerates officers for obviously unlawful conduct, so long

as that particular conduct is so extreme and unprecedented

that it is not contemplated by policy and has never been

attempted before. I would reverse the grant of qualified

immunity as to the Defendants’ PIT maneuvers using the

V150.

SABBE V. WASHINGTON CNTY. BD. OF COMM’RS 69

IV.

Finally, I agree with the majority’s holding that the

district court properly dismissed plaintiff’s Monell claim. 18

The majority reasons that even though the second PIT

maneuver constituted unconstitutional excessive force on

the facts of this case, the county’s failure to train officers on

the use of the V150 to execute PIT maneuvers did not rise to

the level of deliberate indifference. I agree with the majority

that Sergeant Braun’s testimony that the department had

never heard or thought of using an armored vehicle to carry

out a PIT maneuver weighs against a finding that the

county’s failure to train its officers on such a use of the

vehicle amounted to deliberate indifference.

CONCLUSION

The majority’s decision today shields the officers from

liability for their extreme and disproportionate response to a

situation that otherwise might have ended peacefully. The

officers’ use of an unmarked, military-grade vehicle to

initiate a violent confrontation with an individual who was

on his own property and posed no obvious risk to the officers

or the public was unprecedented precisely because the

response was so miscalibrated to the threat posed. The

majority’s application of qualified immunity in this case,

18

The district court granted summary judgment on the Monell claim on

the ground that no constitutional violation occurred. Alternatively, the

district court concluded that the plaintiff has failed to identify a policy

underlying the alleged constitutional violation, or to establish a genuine

dispute of fact concerning whether the failure to train the officers

amounted to deliberate indifference. Because I would conclude that a

jury could find that three constitutional violations occurred, I would

affirm the district court’s dismissal of the Monell claim on the second

ground, not the first.

70 SABBE V. WASHINGTON CNTY. BD. OF COMM’RS

rather than facilitating the ability of law enforcement officers

to protect the public, condones decision-making that

escalates risk and results in a tragic, unnecessary death.

For the foregoing reasons, I concur in Part II.A and Part

IV of the majority’s opinion, and in Part III insofar as it holds

that the Defendants are not entitled to summary judgment as

to whether Sabbe shot at the officers in the armored vehicle

before they shot at him. I respectfully dissent from the

remainder of the majority opinion.