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 pa