Court Denies Mentor Policeman's Appeal in Sabo Lawsuit (Updated)

The U.S. Court of Appeals for the Sixth Circuit has in a previous court decision that denied him immunity in a pending lawsuit from the widow of Richard Sabo.

This means Dian Sabo's lawsuit against Tkach could now proceed to trial.

The city of Mentor could also try to appeal the decision to the entire circuit court or the U.S. Supreme Court.

Sabo was shot by Tkach during a brief standoff Feb. 5, 2009.

Sabo had been acting unusually that afternoon, so his family called for paramedics to come to his house on Roselawn Drive. However, when paramedics arrived, Sabo would not cooperate with them.

Paramedics claimed Sabo mentioned getting a gun, so they evacuated the house and took Dian Sabo with them as a safety precaution.

Police responded to the scene, including Tkach. After a brief standoff, Richard Sabo came out of the house with a shotgun. Police said that Sabo pointed the shotgun at police and Tkach fired a single bullet that went through Sabo's lungs and heart, killing him.

Since Sabo's death, the family has maintained that Tkach never actually saw Richard aim his gun.

Dian Sabo filed a wrongful death lawsuit against Tkach, the city of Mentor and several other unnamed police and firefighters in federal court.

Then, U.S. District Judge James S. Gwin dismissed all federal charges against the city of Mentor but not Tkach last year.

In his decision, Gwin wrote, "It is not clear whether Richard Sabo actually took aim with his gun while walking down the driveway. If Sabo was in fact aiming his gun at the officers on the street, then Officer Tkach would likely be justified in using deadly force. However, if Sabo was not aiming his gun and was instead merely turning or walking away, then Tkach’s conduct is far less reasonable."

Tkach to not have the suit against him summarily dismissed to the Sixth Circuit Court of Appeals in Cincinnati.

However, a triumvirate of judges affirmed Gwin's decision. They released a decision Monday saying that there were "genuine issues of material fact regarding whether Tkach had probable cause to believe that Mr. Sabo posed an immediate threat to the safety of fellow officers."

Sabo's family said Tkach acted recklessly, shooting before he knew whether other officers were in danger or not. The city of Mentor and Tkach said he did not.

The appellate judges said it should ultimately be up to a jury to decide. They quoted another case, Burlingame v. Estate of Burlingame, which said, "The question of whether a person has acted recklessly is almost always a question for the jury."

Sabo's attorney, Robert F. DiCello, released a statement regarding the court's decision, which said, "The Sabo family has constantly asserted throughout the court proceedings that the officer who shot Richard never actually saw Richard aim his gun, never saw anyone being aimed at, and never actually saw anyone in danger before he shot Richard.   Now the family is eager to have these assertions come out in trial because they have faith in our legal system – a system which has today announced a decision that clears the way for the trial they have been seeking since Richard died."

John T. McLandrich, an attorney who is arguing the case on behalf of the city, said he was disappointed with the judges' decision.

"They reached the decision besed on a narrow jurisdicional basis," he said.

He also said Gwin made his decision based on an interpretation of police officers' testimony and he did not consider that a question of fact.

McLandrich said the city's attorneys had not decided if they would appeal the decision to the entire circuit, Supreme Court or proceed to trial.