APRIL SABBE, Individually and as Personal Representative of the Estate of Remi Sabbe, Deceased v. 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
No. 21-35431
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
October 17, 2023
D.C. No. 3:19-cv-02106-IM.
FOR PUBLICATION
OPINION
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.
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 wаs 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 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.
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”
Sabbe‘s widow, April, brought this civil suit seeking damages from the officers and the County pursuant to
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 the brothers’ childhоod 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
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.” 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 BеarCat 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 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
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 proрerty 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 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
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 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
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 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
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
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 сause of Sabbe‘s death. See Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008) (noting that a
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
“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
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 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
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 еntered 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, 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, 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,
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
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
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
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
The next question is whether the force Defendants used in their attempt to stop Sabbe‘s truck was excessive, or
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
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 аt 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 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
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
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 аnd 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 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
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,
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 rеverse 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.
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 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 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’
The officеrs’ 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
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
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
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
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. 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 inmаtes 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- 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
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 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 сoncerned whether the use of pepper spray, physical assaults, and K-9 dog bites to subdue a suspect constituted excessive force. 394 F.3d 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 v. Rickard, 572 U.S. 765, 778-79, 134 S. Ct. 2012, 2023, 188 L. Ed. 2d 1056 (2014)). 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
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 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
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 v. Gelhaus, 871 F.3d 998, 1012 (9th Cir. 2017); 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
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 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
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.
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
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 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.
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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 whеther 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 Landeros v. City of Tustin, 837 F.3d 1005, 1011 (9th Cir. 2016).
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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
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 majоrity 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.
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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 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
SABBE V. WASHINGTON CNTY. BD. OF COMM‘RS 45
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 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.
SABBE V. WASHINGTON CNTY. BD. OF COMM‘RS 46
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
II.
The majority disposes of the unlawful entry claim without assessing its merits by concluding that, even if the entry violated the
SABBE V. WASHINGTON CNTY. BD. OF COMM‘RS 47
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
A.
It is a “basic principle of
SABBE V. WASHINGTON CNTY. BD. OF COMM‘RS 48
The exigency and emergеncy 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 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
SABBE V. WASHINGTON CNTY. BD. OF COMM‘RS 49
(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
SABBE V. WASHINGTON CNTY. BD. OF COMM‘RS 50
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 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
SABBE V. WASHINGTON CNTY. BD. OF COMM‘RS 51
another.”
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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
if he was attempting or intending to use the weapon unlawfully against someone else.
SABBE V. WASHINGTON CNTY. BD. OF COMM‘RS 53
(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
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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
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
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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.
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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.
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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
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
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, 573 F.3d at 763 (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)).
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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
(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).
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There is no shortage of case law establishing that, to rely on the exigency exception,
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 sсreaming “[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.
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B.
The majority sidesteps any acknowledgment of this egregious breach of the
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
Furthermore, “a plaintiff in a civil rights action under
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).
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 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 еntry 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 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,
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
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 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 priоr 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 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.
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
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 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
The officers here stated that the force they administered by repeatedly ramming the V150 into Sabbe‘s vehicle was unprecedеnted. 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 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.
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
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, 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.
Notes
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
(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.”
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.