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.