Sabbe v. Wash. Cnty. Bd. of Comm'rs

84 F.4th 807

April SABBE, Individually and as Personal Representative of the Estate of Remi Sabbe, Deceased, Plaintiff-Appellant, 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, Defendants-Appellees.

No. 21-35431

United States Court of Appeals, Ninth Circuit

Argued and Submitted May 9, 2022 Portland, Oregon

Filed October 17, 2023

Appeal from the United States District Court for the District of Oregon, Karin J. Immergut, District Judge, Presiding, D.C. No. 3:19-cv-02106-IM

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.

Before: Marsha S. Berzon, Richard C. Tallman, and Morgan Christen, Circuit Judges.

Opinion by Judge Christen;

Partial Concurrence and Partial Dissent by Judge Berzon.

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 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 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." 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 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 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...