And there is no reason to discount the testimony of Trooper Perras; he is neither a defendant himself nor employed by the defendant Newton County. Shooting a man who has told you, in effect, that he is going to use deadly force against you and then moves toward you as if to do so is unquestionably an act of selfdefense even if, as Plakas's expert maintains, the man is attempting "suicide by police.". The tree-sapling discrepancy is of the sort on which popular conspiracy theories are built, but it is not enough to allow a rational trier of fact to decide against Drinski. The police gave chase, shouting, "Stop, Police." There is a witness who corroborates the defendant officer's version. Such that an objectively reasonable officer would have understood that the conduct violated the right. ZAGEL, District Judge. U.S. Court of Appeals, Fifth Circuit. 2d 772 (1996). Circuit court decisions further interpret U.S. Supreme Court decisions: 7th Circuit -Plakas v. Drinski (1994) -Decided that there is no search results: Unidirectional search, left to right: in In affirming summary judgment for the officer, we said. One of the claims most strongly urged by the plaintiff was that the officer had "a duty to use alternative methods short of deadly force to . Anderson v. Creighton In Anderson v. Creighton, 483 U .S. Perras only saw that Drinski stumbled in his retreat either because he backed into something or simply tripped. Cited 42 times, 909 F.2d 324 (1990) | The right was clearly established at the time of the conduct. He saw Plakas cock the poker over his head for a swing and, when Plakas was two arms lengths away, he fired once at Plakas' chest. When Cain and Plakas arrived, the ambulance driver examined Plakas. Drinski and Perras had entered the house from the garage and saw Plakas leave. When Cain and Plakas arrived, the ambulance driver examined Plakas. This is what we mean when we say we refuse to second-guess the officer. Joyce and Rachel helped him. The district court's grant of summary judgment is AFFIRMED. Plakas refused medical treatment and signed a written waiver of treatment. Here it is beyond dispute that, under the Constitution, the police could reasonably (1) arrest Plakas for drunk driving after he exhibited familiar signs of intoxication; (2) track down an escaping arrestee; (3) draw and point weapons after Plakas armed himself and attacked an officer; (4) pursue Plakas into the clearing after he committed a violent offense and was a danger to himself; and (5) try to talk Plakas into disarming himself and surrendering. Koby frisked Plakas and then handcuffed him, with his hands behind his back. As he did so, Plakas slowly backed down a hill in the yard. Cited 77 times, 980 F.2d 299 (1992) | Leaving aside the absence of evidence of facial injuries from medical records or post-mortem observation, we accept that Mrs. Ailes saw these injuries. 2d 443 (1989). Id. Drinski's retreat was involuntarily stopped, either by his backing into a tree or by a near stumble of some sort. This does not help Plakas's case because, by the time the paramedic arrived, Plakas's body had been moved, rolled over by Drinski and Perras.3 Plakas himself may have also moved; the dying man kicked over the paramedic's medical case. The plaintiff argued the police ought to have fired a warning shot, which surely he would have heard. We know the caliber of the bullet, but not its type or weight or the power of the charge in the cartridge, nor do we know where it struck Plakas and what effect it might have on the position of the body. The clearing was small, but Plakas and the officers were ten feet apart. But it is trouble which the police officer is sworn to cause, which society pays him to cause and which, if kept within constitutional limits, society praises the officer for causing." Dickerson, 101 F.3d at 1161 (quoting Plakas v. Drinski, 19 F.3d 1143, 1150 (7th Cir.1994)). 1988) (en banc), police officers shot and wounded a masked bank robber fleeing from the scene of his crime. After the weapon was out, she told him three times, "Please don't make me shoot you." Here it is beyond dispute that, under the Constitution, the police could reasonably (1) arrest Plakas for drunk driving after he exhibited familiar signs of intoxication; (2) track down an escaping arrestee; (3) draw and point weapons after Plakas armed himself and attacked an officer; (4) pursue Plakas into the clearing after he committed a violent offense and was a danger to himself; and (5) try to talk Plakas into disarming himself and surrendering. 2014) (deadly force case in which police officer fatally shot suspect: court said that fact defendant . Through an opening in the brush was a clearing. Inside the house, Plakas took the poker, slammed it into the wall1 and then beat his head against the wall. 251, 403 N.E.2d 821, 823, 825 (Ind. Plakas brings up a few bits of evidence to do so. Tom v. Voida is a classic example of this analysis. Cain and some officers went to the house. King, listening from outside the clearing, thought Drinski might persuade Plakas to drop the weapon, but he did not. Again, he struck her. You can explore additional available newsletters here. He raised or cocked the poker but did not swing it. At one point, Plakas lowered the poker but did not lay it down. 1994) - ". 2d 443, 109 S. Ct. 1865 (1989). Illinois. Northern District. But did we hold that this imposes a constitutional duty to use (or at least consider) the use of all alternatives? Reconsideration will nearly always reveal that something different could have been done if the officer knew the future before it occurred. She decided she would have to pull her weapon so that he would not get it. He also said, in substance, "Go ahead and shoot. Indeed, Plakas merely states this theory, he does not argue it. Graham, 490 U.S. at 396-97, 109 S. Ct. at 1872; see also Sherrod v. Berry, 856 F.2d 802, 806-07 (7th Cir. Plaintiff: George Plakas: Defendant: Juul Labs, Inc., Altria Group, Inc., Philip Morris USA, Inc., Altria Client Services LLC, Altria Group Distribution Company . We always Judge a decision made, as Drinski's was, in an instant or two. Finally he rushed at Koby and swung quite hard at Koby, striking Koby's wrist with the poker. There is, however, not a single precedent which holds that a governmental unit has a constitutional duty to supply particular forms of equipment to police officers. The closest thing we have to such a list is the rule which requires prison administrators to provide a law library to inmates, but even here we only require this as an alternative to providing other forms of legal assistance. Find . Perhaps we ought not to consider this theory since it was not pled, but it is of no use to Plakas in any event. Perhaps in recognition of this weakness in the case, Plakas offers two other theories, one of which is a minor theme of his brief, that shooting in self-defense is unjustified where the aggressor acted out of reasonable fear of police brutality. Cain said that Plakas was not slamming the poker into the wall, rather, he was starting toward Cain and perhaps swinging it at Cain and missing. In Koby's car, the rear door handles are not removed. Since medical assistance previously had been requested for Koby, it was not long in coming. Koby gestured for Cain to back up. The proposition that an officer who beats John Doe may not use self-defense to justify killing Doe, who later attacks him, rests on the idea that because the officer's wrongful acts caused the attack, he cannot take advantage of his fear of retaliation to defend against liability. Id. Koby spoke to Plakas who had some difficulty communicating the fact that he did not have his driver's license (which he had surrendered as bond for a traffic ticket he received in Illinois). 1994)). Find a Lawyer. The police gave chase, shouting, "Stop, Police." Jo Ann PLAKAS, Individually and as Administrator of the Estate of Konstantino N. Plakas, Deceased, Plaintiff-Appellant, v. Jeffrey DRINSKI, in both his individual and official capacity and Newton County, Indiana, a municipal unit of government, Defendants-Appellees. This theory is founded on the fact that Plakas told Koby, "You hurt me," and on Joyce Ailes's observation that Plakas had facial injuries. We do not believe the Fourth Amendment requires the use of the least or even a less deadly alternative so long as the use of deadly force is reasonable under Garner v. Tennessee and Graham v. Connor, supra. Then the rear door flew open, and Plakas fled into snow-covered woods. Plakas often repeated these thoughts. When the police first saw Plakas, at about 9:30 p.m. on February 2, 1991, he was walking along State Road 10 in Newton County, Indiana, not far from the Illinois state line. The police could have tried to put barriers between themselves and Plakas and maintain distance from him. While Cain and the others tried to explain that Cain was from the fire department and wanted only to give medical aid, Plakas was loud and combative; (Joyce Ailes said he was "hysterical"). It is unusual to hear a lawyer argue that the police ought to have caused a dog to attack his client, but he is right that such an attack might have led to a better result for his client (and would, in our view, have led to a different sort of lawsuit). United States District Court, N.D. Indiana, Hammond Division. 1992). United States Court of Appeals, Seventh Circuit. During the entire time in the clearing, Perras had a canister of CS repellant on his belt.2 It could have been used to disable Plakas. 1994) case opinion from the US Court of Appeals for the Seventh Circuit Roy told him that he should not run from the police. Tom, 963 F.2d at 962. After he was shot, Plakas fell to Drinski's right and lay face down semiconscious on the ground. Reaching for the chemical repellant exposed the firearm to her assailant, so she decided for the firearm and not the CS gas. Joyce saw no blood, but saw bumps on his head and bruises. Drinski believed he couldn't retreat because there was something behind him. 1992), a case of tragic dimension where an officer stopped to help a fallen man and eventually, as two courts held, had to kill that man in defense of her own life. The only witnesses to the shooting were three police officers, Drinski and two others. Further, says Plakas, a photograph of the clearing shows there was no tree there to stop Drinski, just a sapling, and there are no footprints corroborating Drinski's story of retreat. 1994), in which he states: . Filing 82. Plakas V. Drinski Ecology of Fear Emerging Infectious Diseases NCUA Examiner's Guide Local Budgeting Routledge Handbook on Capital Punishment Principles of Federal Appropriations Law Administration of Insured Home Mortgages Urban Economics and Fiscal Policy Handbook of School Mental Health Policy and Procedures Manual for Guidance of Federal . After he was shot, Plakas fell to Drinski's right and lay face down semiconscious on the ground. They followed him out, now with guns drawn. Plakas backed into a corner and neared a set of fireplace tools. They called Plakas "Dino." See also Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872, 104 L. Ed. Second, Drinski said he was stopped in his retreat by a tree. See, e.g., John Barry & Tom Morganthau, Soon, 'Phasers on Stun', NEWSWEEK, Feb. 7, 1994, at 24-26. 1992), a case of tragic dimension where an officer stopped to help a fallen man and eventually, as two courts held, had to kill that man in defense of her own life. This inference, however, cannot reasonably be made. Filing 920070312 Cited 96 times, 973 F.2d 1328 (1992) | Id. Through an opening in the brush was a clearing. From this, Plakas argues a jury could infer that Officer Koby had beaten Plakas. His car had run off the road and wound up in a deep water-filled ditch. The fourth amendmentt does not require officers to use the least intrusive or even less intrusive alternatives in search and seizure cases. Plakas turned and faced them. Plakas' mother, the Administratrix of his estate, has filed suit under 42 U.S.C. In brief, after the officer stopped to help the man, his actions and his flight showed he was unhurt and may well have stolen the bike from which he fell. We do not know whether there was any forensic investigation made at the scene. Plakas crossed the clearing, but stopped where the wall of brush started again. Plakas v. Drinski, 19 F.3d 1143 (7th Cir. Voida could not have subdued Tom through lesser means, as she did not have her nightstick with her and she feared that reaching for her chemical repellant would expose her weapon to Tom's grasp. He moved toward her. My life isn't worth anything." 1988), Here we distinguish Gilmere, but by doing so we neither approve nor disapprove of its holding, There may be state law rules which require retreat, but these do not impose constitutional duties. King, listening from outside the clearing, thought Drinski might persuade Plakas to drop the weapon, but he did not. 3. 1980); Montague v. State, 266 Ind. Alfredia Edwards as Independent Administrator of the Estate of Nathaniel Edwards v. Officer John Doe et al, Thomas Leiter v. Joseph Bumbaugh and Town of Winona Lake, Favela v. Las Cruces Police Department et al. Warren v. Chicago Police Dept. He saw Plakas cock the poker over his head for a swing and, when Plakas was two arms lengths away, he fired once at Plakas' chest. If the officer had decided to do nothing, then no force would have been used. This does not help Plakas's case because, by the time the paramedic arrived, Plakas's body had been moved, rolled over by Drinski and Perras.3 Plakas himself may have also moved; the dying man kicked over the paramedic's medical case. 1988). Inside the house, Plakas took the poker, slammed it into the wall1 and then beat his head against the wall. Perras and Drinski entered the clearing. Hyde v. Bowman et al. Actually, the photograph is not included in the record here. Get free summaries of new Seventh Circuit US Court of Appeals opinions delivered to your inbox! 3. A training program would be created under the bill that would cover racial bias and duty to intervene, and the measure would require that police officers use deadly force only as a last resort and use de-escalation techniques. Our historical emphasis on the shortness of the legally relevant time period is not accidental. In Carter, such an alternative was not merely speculative; the arrestee was employed inside a prison where he would not have had a gun on his person. Koby gestured for Cain to back up. Indeed, Plakas merely states this theory, he does not argue it. Before CUMMINGS and COFFEY, Circuit Judges, and ZAGEL, District Judge.*. george v. morris, in which a ninth circuit panel concluded a police officer violated a clearly estab-lished constitutional right 17 7. a 13-year-old child is not an adult and the child's age is relevant to . Opinion for Pena, Marilyn v. Leombruni, Greg Brought to you by Free Law Project, a non-profit dedicated to creating high quality open legal information. These cases make it clear that liability cannot be founded on the failure of Drinski to keep some sort of distance or natural barrier between himself and Plakas. Roy stayed outside to direct other police to his house. He hit the brakes and heard Plakas hit the screen between the front and rear seats. Also, in Carter v. Buscher, 973 F.2d 1328 (7th Cir. There is no contention that this "invitation" immediately preceded the shooting or caused Plakas to charge Drinski. At times Plakas moved the poker about; at times it rested against the ground. 1994). Koby also thought that he would have a problem with Plakas if he uncuffed him. At one point, Plakas lowered the poker but did not lay it down. accident), Expand root word by any number of 4th 334, 54 Cal. An alternative plan could have reduced or eliminated the possibility of the arrestee's use of a gun. Finally he rushed at Koby and swung quite hard at Koby, striking Koby's wrist with the poker. This is not a case where an officer claims to have used deadly force to prevent an escape. 1992). 2009) (per curiam) (quoting Vinyard v. Even if there were no other witness, there is virtually nothing in this record to impeach Drinski. In any self-defense case, a defendant knows that the only person likely to contradict him or her is beyond reach. Plakas v. Drinski, 19 F.3d 1143 (7th Cir. Roy Ailes, who had just returned to his house, saw the officers with guns drawn and ran forward saying, "Don't shoot, I'll talk to him." Plakas accused Koby of hurting him, and yelled about the handcuffing behind his back and about his scar tissue. See Gilmere, 774 F.2d at 1501 ("any fear on the officer's part was the fear of retaliation against his own unjustified physical abuse").4 Drinski did not cause Plakas to attack him. letters, 963 F.2d 952 (1992) | In brief, after the officer stopped to help the man, his actions and his flight showed he was unhurt and may well have stolen the bike from which he fell. 1993 . right or left of "armed robbery. This inference, however, cannot reasonably be made. The alternatives here were three. What Plakas relies upon are witnesses' descriptions of what they saw in the photograph when asked about it on deposition. But Plakas does have at least one opinion on which he may build his argument, that is, Tom v. Voida, 963 F.2d 952 (7th Cir. Drinski blocked the opening in the brush where all had entered the clearing. Perras took the poker. After a brief interval, Koby got in the car and drove away. Pasco, et al v. Knoblauch. 1985) (en banc). Second, Drinski said he was stopped in his retreat by a tree. Plakas means to argue that Drinski should have used all available alternatives before deadly force was exercised and that Newton County, Drinski's employer, is liable because it failed to equip and train Drinski to use such methods. 1994), and Russo v. City of Cincinnati, 953 F.2d 1036 Konstantino Plakas was shot once and killed by Jeffrey Drinski, a deputy sheriff. See Martin L. Fackler, M.D., Police Handgun Ammunition Selection, WOUND BALLISTICS REVIEW, Fall 1992, at 32-37 (suggesting little effect beyond stopping movement). United States Court of Appeals . While Cain and the others tried to explain that Cain was from the fire department and wanted only to give medical aid, Plakas was loud and combative; (Joyce Ailes said he was "hysterical"). Plakas opened his shirt to show the scars to Drinski. 51, 360 N.E.2d 181, 188-89 (Ind. Plakas v. Drinski, 19 F.3d 1143 (7th Cir. In this record, there is expert opinion that Drinski might have been better trained to negotiate with Plakas and that he may have said one thing to Plakas that he ought not to have said, i.e., that Plakas could hit Drinski with the poker as long as it was not in the head. The clearing was small, but Plakas and the officers were ten feet apart. He swore Koby would not touch him. Cain said that Plakas was not slamming the poker into the wall, rather, he was starting toward Cain and perhaps swinging it at Cain and missing. Plakas's administrator claimed that the self-defense story was full of holes and that, even if it were not, Drinski and the county which employed him had a constitutional obligation to do more to preserve his life than they did. 1988) (en banc) . Perhaps we ought not to consider this theory since it was not pled, but it is of no use to Plakas in any event. At one point Plakas pointed the poker at Drinski and said, "Either you're going to die here or I'm going to die here." See Reed v. Hoy, 909 F.2d 324, 330-31 (9th Cir. She chased him and, when she caught him, he attacked her, banging her head into a concrete surface. They talked about the handcuffs and the chest scars. Konstantino Plakas was shot once and killed by Jeffrey Drinski, a deputy sheriff. It is from this point on that we judge the reasonableness of the use of deadly force . Nor does he show how such a rule of liability could be applied with reasonable limits. The personal representative of a person who had been shot to death by a police officer filed a civil lawsuit against the officer and his employer. This appeal followed. In Koby's car, the rear door handles are not removed. None of these devices is unfailingly effective and safe, and courts and juries are unlikely to be capable of judging when they ought to be used. Cited 43 times, 855 F.2d 1271 (1988) | They noticed that his clothes were wet. 1. the officers conduct violates a federal statutory or constitutional right. The Honorable James B. Zagel, District Judge of the United States District Court for the Northern District of Illinois, is sitting by designation, We adopt the version most favorable to plaintiff. The Fourth Amendment does not require officers to use the least intrusive or even less intrusive alternatives in ordering search and seizure cases. Plakas died sometime after he arrived at the hospital. We always judge a decision made, as Drinski's was, in an instant or two. 1983 against Drinski and Newton County to recover damages in connection with her son's death. Plakas ran to the Ailes home located on a private road north of State Road 10. Circumstances can alter cases. On the way to the scene of the accident, Cain noticed Plakas walking along State Road 10. We refuse to impose as an additional constitutional requirement the firing of a warning shot before deadly force may be used." at 1332. Drinski did most of the talking. Justia. Seventh Circuit. Moreover, when Plakas did say anything at all about Koby, it was a complaint about cuffing him behind his back, which he said (without medical corroboration even now) caused pain because of his scar tissue. He turned back to Drinski who was 12 to 15 feet away and, with the poker raised, charged at Drinski who backed away. Moreover, about ten minutes before the shooting, the services of a canine unit (from Lake County) were offered. Jo Ann Plakas, Individually and As Administrator of Theestate of Konstantino N. Plakas, Deceased,plaintiff-appellant, v. Jeffrey Drinski, in Both His Individual and Officialcapacity and Newton County, Indiana, a Municipalunit of Government, Defendants-appellees, 19 F.3d 1143 (7th Cir. We refuse to impose as an additional constitutional requirement the firing of a warning shot before deadly force may be used." Drinski blocked the opening in the brush where all had entered the clearing. She decided she would have to pull her weapon so that he would not get it. 93-1431. She alleges that her son was armed with only a fireplace poker and posed no serious threat to the safety of Drinski or others. Then gripping it with both hands, he continued screaming, louder and louder at Cain and Koby. 251, 403 N.E.2d 821, 823, 825 (1980); Montague v. State, 266 Ind. Leaving aside the absence of evidence of facial injuries from medical records or post-mortem observation, we accept that Mrs. Ailes saw these injuries. This is not the kind of weighing of least deadly alternatives that Plakas would have us require of Drinski. If the officer had decided to do nothing, then no force would have been used. None of these devices is unfailingly effective and safe, and courts and juries are unlikely to be capable of judging when they ought to be used, The closest thing we have to such a list is the rule which requires prison administrators to provide a law library to inmates, but even here we only require this as an alternative to providing other forms of legal assistance. Signed by District Judge R. Stan Baker on 01/06/2023. Drinski believed he couldn't retreat because there was something behind him. He appeared to be blacking out. The only test is whether what the police . Plakas v. Drinski (7th, 1994) in 1991 Plakas was walking. Our answer is, and has been, no because there is too little time for the officer to do so and too much opportunity to second-guess that officer. All of the witnesses testified to an act of self-defense; that Plakas was moving toward Drinski and menacing him with a fireplace poker and that, moments before, Plakas had said to Drinski, "Either you're going to die here or I'm going to die here." near:5 gun, "gun" occurs to either to What Drinski did here is no different than what Voida did. We do not return to the prior segments of the event and, in light of hindsight, reconsider whether the prior police decisions were correct." 7) Drewitt v. . et al. Rptr. Tom v. Voida did not, and did not mean to, announce a new doctrine. 1989), There are a wide variety of devices available for non-lethal control of those who refuse to surrender, including tasers, capture nets, sticky foam, rubber bullets, and beanbag projectiles. Read this book using Google Play Books app on your PC, android, iOS devices. Appx. She chased him and, when she caught him, he attacked her, banging her head into a concrete surface. Joyce saw no blood, but saw bumps on his head and bruises. He moaned and said, "I'm dying." Deputy Drinski passed by the injured Koby and asked him with what he was hit; Koby told him that Plakas had a poker. Plakas did agree to go to the Sheriff's Department to be tested for intoxication. Cited 1106 times, Perkovic v. Marine City Police Officer Heaslip, LUNA-DIAZ et al v. HACKENSACK POLICE DEPARTMENT et al, Romero v. Board of County Commissioners of, ESTATE OF RONALD SINGLETARY et al v. CITY OF PHILADELPHIA et al, Estate of Andre Alexander Gree v. City of Indianapolis, Estate of Jason Ike Pero, by Personal Representative Holly Gauthier v. County of Ashland et al, Matthew King v. Hendricks County Commissioner, Jensen, Tristan v. Budreau, Anthony et al, United States of America v. City of Albuquerque, Nelson v. Board of County Commissioners of the Bernalillo County et al, Bradley v. Rochester Police Department et al, KING v. HENDRICKS COUNTY COMMISSIONERS et al, Jonas v. Board of Commissioners of Luna County. He fell on his face inside the doorway, his hands still cuffed behind his back. Drinski was in fear of his life, and Plakas's action was sudden and unexpected. Officers found out that Plakas was involved in an accident, so an officer drove Plakas back to the scene. The plaintiff there was the administrator of the estate of The officers who confronted Plakas were not the officers who injured him and should be able to claim self-defense. There is no contention that this "invitation" immediately preceded the shooting or caused Plakas to charge Drinski. The answer is no. Cain left. This conclusion accords comfortably with the opinion of Judge Zagel in Plakas v. Drinski, 19 F.3d 1143, 1148-50 (7th Cir. Sign up for our free summaries and get the latest delivered directly to you. Also, in Carter v. Buscher, 973 F.2d 1328 (7th Cir. There may be state law rules which require retreat, but these do not impose constitutional duties. Plakas was calm until he saw Cain and Koby. See Martin L. Fackler, M.D., Police Handgun Ammunition Selection, WOUND BALLISTICS REVIEW, Fall 1992, at 32-37 (suggesting little effect beyond stopping movement). Plakas agreed that Roy should talk to the police. The Fourth Amendment does not require officers to use the least intrusive or even less intrusive alternatives in search and seizure cases. He picked one of them up, a 2-3 foot poker with a hook on its end. ", (bike or scooter) w/3 (injury or Plakas told Cain he had been the driver of the car in the ditch, and Plakas agreed to get into Cain's car in order to be driven back to the accident scene, now about a mile from where Plakas was found. * The Honorable James B. Zagel, District Judge of the United States District Court for the Northern District of Illinois, is sitting by designation. The only witnesses to the shooting were three police officers, Drinski and two others. Because these facts are not in the record, we cannot consider them on appeal and assume that had they any significance, they would have been made part of the record. right of "armed robbery. She did not have her night stick. He raised or cocked the poker but did not swing it. It is obvious that we said Voida thought she had no alternatives. There can be reasonable debates about whether the Constitution also enacts a code of criminal procedure, but we think it is clear that the Constitution does not enact a police administrator's equipment list.7 We decline to use this case to impose constitutional equipment requirements on the police.8. Plakas argues there is enough evidence to cast doubt on the defendants' self-defense claim, given the low threshold that courts have set for refuting self-defense in deadly force cases both civil and criminal. The proposition that an officer who beats John Doe may not use self-defense to justify killing Doe, who later attacks him, rests on the idea that because the officer's wrongful acts caused the attack, he cannot take advantage of his fear of retaliation to defend against liability. Moreover, about ten minutes before the shooting, the services of a canine unit (from Lake County) were offered. Moreover, when Plakas did say anything at all about Koby, it was a complaint about cuffing him behind his back, which he said (without medical corroboration even now) caused pain because of his scar tissue. She did not have her night stick. Pratt, 999 F.2d 774 (4th Cir. The district Judge disagreed and granted summary judgment. There are a wide variety of devices available for nonlethal control of those who refuse to surrender, including tasers, capture nets, sticky foam, rubber bullets, and beanbag projectiles. Dockets & Filings. Subscribe Now Justia Legal Resources. And there is no reason to discount the testimony of Trooper Perras; he is neither a defendant himself nor employed by the defendant Newton County. We do not return to the prior segments of the event and, in light of hindsight, reconsider whether the prior police decisions were correct. So we carve up the incident into segments and Judge each on its own terms to see if the officer was reasonable at each stage. Plakas charged [the police officer] with the poker raised. Plakas opened his shirt to show the scars to Drinski. Yet there exists a possibility that although Drinski's acts were justified given his circumstances, Newton County may be held liable for creating those circumstances. In Carter, such an alternative was not merely speculative; the arrestee was employed inside a prison where he would not have had a gun on his person. 1991); Tom v. Voida, 963 F.2d 952, 961 (7th Cir. Justia. Graham, 490 U.S. at 396-97; see also Sherrod v. Berry, 856 F.2d 802, 806-07 (7th Cir. The time-frame is a crucial aspect of excessive force cases. As Plakas moved toward Drinski, was he supposed to think of an attack dog, of Perras's CS gas, of how fast he could run backwards? She had no idea if other officers would arrive. She fired and missed. So a court must undertake a fairly critical assessment of the forensic evidence, the officer's original reports or statements and the opinions of experts to decide whether the officer's testimony could reasonably be rejected at a trial. Deputy Drinski passed by the injured Koby and asked him with what he was hit; Koby told him that Plakas had a poker. Cain examined Plakas's head and found nothing that required medical treatment. See Gilmere, 774 F.2d at 1501 ("any fear on the officer's part was the fear of retaliation against his own unjustified physical abuse").4 Drinski did not cause Plakas to attack him. 1988) (en banc), police officers shot and wounded a masked bank robber fleeing from the scene of his crime. He moaned and said, "I'm dying." The only argument in this case is that Plakas did not charge at all. What Drinski did here is no different than what Voida did. From this, Plakas argues a jury could infer that Officer Koby had beaten Plakas. 1356. He told Koby that this hurt him because he had burn scars on his chest and thought that if he got in the car, his chest would start to bleed. The fact remains that both officers say that Drinski's retreat occurred and that it ended by virtue of some circumstance other than Drinski's volition. Cain saw Plakas push his legs through the circle of his arms, bringing his cuffed hands to the front of his body. 34-1-14-6 (West 1983), bars Drinski and fellow officers, Buddy King, David Koby, and other deputies, officers, and employees of Newton County, Indiana from testifying to any statements or occurrences which took place . The details matter here, so we recite them. The details matter here, so we recite them. Heres how to get more nuanced and relevant McGarry v. Board of County Commissioners for the County of Lincoln, et al. 1994). Code Ann. Plakas v. Drinski, 19 F.3d 1143, 1146 (7th Cir. Cain thought Plakas was out to kill him, Perras said that he did not use the CS repellant because he was too far from Plakas and because it might have landed on his fellow officers. Plakas was turned on his back. The answer is no. Plakas, however, merely mentions this testimony to show that Drinski was badly trained. . 2d 1116, 96 S. Ct. 3074 (1976). It is obvious that we said Voida thought she had no alternatives. Cain left. The moon was bright, light was reflecting off the snow and it was easy to track Plakas who slowed as he entered a row of thick brush hedges. Since Drinski did not violate Plakas's rights, there usually is no basis for holding his employer, Newton County, liable. He moved toward her. See Gilmere v. City of Atlanta, 774 F.2d 1495, 1501 (11th Cir. During the entire time in the clearing, Perras had a canister of CS repellant on his belt.2 It could have been used to disable Plakas. These cases make it clear that liability cannot be founded on the failure of Drinski to keep some sort of distance or natural barrier between himself and Plakas. It is a self-defense case where the officer has "probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer" and, therefore, the officer may use deadly force. Plakas yelled a lot at Koby. 1. See Perfetti v. First Nat'l Bank of Chicago, 950 F.2d 449, 456 (7th Cir. Plakas also correctly refrains from arguing that the police should have simply walked away and arrested Plakas on another day. Likewise, we decline to impose a constitutional requirement to train the police to use all available equipment beyond the acceptable training program already mandated. Plakas often repeated these thoughts. Roy Ailes, who had just returned to his house, saw the officers with guns drawn and ran forward saying, "Don't shoot, I'll talk to him." Subscribe Now Justia Legal Resources. Perras said that he did not use the CS repellant because he was too far from Plakas and because it might have landed on his fellow officers. Cited 651 times, 105 S. Ct. 1694 (1985) | There can be reasonable debates about whether the Constitution also enacts a code of criminal procedure, but we think it is clear that the Constitution does not enact a police administrator's equipment list.7 We decline to use this case to impose constitutional equipment requirements on the police.8. King, Koby, Cain and Trooper Lucien Mark Perras of the Indiana State Police responded, as did Deputy Sheriff Jeffrey Drinski. 1994). Cain smelled alcohol on Plakas's breath and Plakas dozed off as they rode to the place where the car had gone off the road. Plakas, however, merely mentions this testimony to show that Drinski was badly trained. Voida was justified in concluding that Tom could not have been subdued except through gunfire. King, Koby, Cain and Trooper Lucien Mark Perras of the Indiana State Police responded, as did Deputy Sheriff Jeffrey Drinski. The moon was bright, light was reflecting off the snow and it was easy to track Plakas who slowed as he entered a row of thick brush hedges. Bankruptcy Lawyers; Business Lawyers . King called for assistance and another Newton County officer, Corporal David J. Koby, and two paramedics, Glen Cain and Steven Whitt, responded. 1992). Finally, there is the argument most strongly urged by Plakas. The tree-sapling discrepancy is of the sort on which popular conspiracy theories are built, but it is not enough to allow a rational trier of fact to decide against Drinski. defendant cites Plakas v. Drinski, 19 F.3d 1143, 1148 (7th Cir. Cain and Koby were the first to enter. Civ. Tennessee v. Garner, 471 U.S. 1, 3, 105 S. Ct. 1694, 1697, 85 L. Ed. Argued Nov. 1, 1993. 1988) (en banc). See Perfetti v. First Nat'l Bank of Chicago, 950 F.2d 449, 456 (7th Cir. 4. He appeared to be blacking out. Roy Ailes spoke to Plakas, smelled alcohol on his breath, and found him to be upset and insistent that he did nothing wrong. Dockets & Filings. See Reed v. Hoy, 909 F.2d 324, 330-31 (9th Cir. Plakas's administrator claimed that the self-defense story was full of holes and that, even if it were not, Drinski and the county which employed him had a constitutional obligation to do more to preserve his life than they did. Perras would have shot Plakas if Drinski had not. This is not the kind of weighing of least deadly alternatives that Plakas would have us require of Drinski. In doing so, courts must ask whether the force applied was "objectively reasonable in light of the facts confronting the officer." Crenshaw v. Lister, 556 F.3d 1283, 1290 (11th Cir. Plakas complained about being cuffed behind his back. Then the rear door flew open, and Plakas fled into snow-covered woods. You're all set! The district court's grant of summary judgment is AFFIRMED. Plakas told them that he had wrecked his car and that his head hurt. Koby told Plakas that this manner of cuffing was department policy which he must follow. In Ford v. Childers, 855 F.2d 1271 (7th Cir. Illinois v. Lafayette, 462 U.S. 640, 647, 77 L. Ed. In this sense, the police officer always causes the trouble. The officers who confronted Plakas were not the officers who injured him and should be able to claim self-defense. Voida fired one shot at Tom which did not hit him, but he insisted on lunging at her again. Drinski did most of the talking. Even if there were no other witness, there is virtually nothing in this record to impeach Drinski. We do not know whether there was any forensic investigation made at the scene. An alternative plan could have reduced or eliminated the possibility of the arrestee's use of a gun. Our answer is, and has been no, because there is too little time for the officer to do so and too much opportunity to second-guess that officer. When paramedic Whitt arrived at the clearing, he found Plakas laying about a foot from the brush at one corner of the clearing. Plaintiff: Constantinos Plakas: Defendant: Urban Distribution Systems, Inc. and Robert DeMartin: Case Number: 1:2013cv02533: Filed: April 26, 2013: Court: In affirming summary judgment for the officer, we said. 6. 1994)).Fifth Circuit: See Thomas v. Baldwin, 595 Fed. Nearly every court has commented on that fact that all decisions about deadly force (or any force) "must embody allowance for the fact that police officers are often forced to make split second judgments--in circumstances that are tense, uncertain and rapidly evolving." Then, when he thought his retreat would not be successful, he was justified in concluding that Plakas could not be subdued at that moment except through gunfire. Plakas remained semiconscious until medical assistance arrived. Whatever the facts may be, it is hard to attribute to either Drinski or Newton County the inaction of Perras, who is neither a defendant here nor under the command of Newton County. Having driven Koby and Cain from the house, Plakas walked out of the front door. First, according to Drinski, Plakas charged away from the brush at Drinski, yet one paramedic who was summoned to the clearing to administer to Plakas observed that Plakas's feet were about a foot from the brush. Plakas means to argue that Drinski should have used all available alternatives before deadly force was exercised and that Newton County, Drinski's employer, is liable because it failed to equip and train Drinski to use such methods. In this sense, the police officer always causes the trouble. The only test is whether what the police officers actually did was reasonable. 1989). Plakas told Cain he had been the driver of the car in the ditch, and Plakas agreed to get into Cain's car in order to be driven back to the accident scene, now about a mile from where Plakas was found. Taken literally the argument fails because Drinski did use alternative methods. Abstract. He tried to avoid violence. Koby opened the rear door of his squad car, and Plakas entered the car voluntarily. In 1991, Plakas drove his car off a State road into a ditch. Because these facts are not in the record, we cannot consider them on appeal and assume that had they any significance, they would have been made part of the record. They called Plakas "Dino." Let's analyze another landmark decision, this one of Plakas v. Drinski (1993), decided by the US 7th District Court of Appeals, Northern District of Indiana, Hammond Division. The officers told Plakas to drop the poker. When the police first saw Plakas, at about 9:30 p.m. on February 2, 1991, he was walking along State Road 10 in Newton County, Indiana, not far from the Illinois state line. In her response to Drinski's Motion for Summary Judgment, Plaintiff argues that the Indiana Dead Man's Statute, Ind. The alternatives here were three. We do not think it is wise policy to permit every jury in these cases to hear expert testimony that an arrestee would have been uninjured if only the police had been able to use disabling gas or a capture net or a taser (or even a larger number of police officers) and then decide that a municipality is liable because it failed to buy this equipment (or increase its police force). But it is trouble which the police officer is sworn to cause, which society pays him to cause, and which, if kept within constitutional limits, society praises the officer for causing. Nor does he show how such a rule of liability could be applied with reasonable limits. The district judge disagreed and granted summary judgment, 811 F. Supp. Twice the police called out, "Halt, police," but the plaintiff may not have heard. Plakas remained semiconscious until medical assistance arrived. 2d 1116 (1976). The only argument in this case is that Plakas did not charge at all. Subscribe Now Justia Legal Resources . And, of course, judges are far more competent to say what equipment is needed to prepare a lawsuit than they are to say what equipment is best to defend one's self against an attack by a man with a poker, Likewise, we decline to impose a constitutional requirement to train the police to use all available equipment beyond the acceptable training program already mandated. Twice the police called out, "Halt, police," but the plaintiff may not have heard. He also told Plakas to drop the weapon and get down on the ground. 635 (1987) , the Supreme Court held that when an officer of the la w (in this case, an FBI officer) conducts a search which violates the Fourth Amendment , that officer is entitled to qualified immunit y if the officer proves that a reasonable officer could ha ve believed that the search It is unusual to hear a lawyer argue that the police ought to have caused a dog to attack his client, but he is right that such an attack might have led to a better result for his client (and would, in our view, have led to a different sort of lawsuit). Joyce Ailes heard Dino banging against the house; she saw him and opened the door. We said, " [T]he officers' split second decision to use their weapons, after twice warning the suspect, was objectively reasonable under the circumstances. The only witnesses to the shooting were three police officers, Drinski and two others. Koby moved away and tried to come in the room from another door, but Plakas chased him away, swinging the poker. Cain knew there was an ambulance at that site and that Plakas could be examined more carefully there. Deputy Drinski passed by the injured Koby and asked him with what he was hit; Koby told him that Plakas had a poker. Yet we rejected the proposition "that the Fourth Amendment prohibits creating unreasonably dangerous circumstances in which to effect a legal arrest of a suspect." And, in fact, the Fifth Circuit has held that the Constitution "does not mandate that law enforcement agencies maintain equipment useful in all foreseeable situations." Cain approached Plakas and saw that Plakas's clothing was wet from the waist down. Yet there exists a possibility that although Drinski's acts were justified given his circumstances, Newton County may be held liable for creating those circumstances. Voida could not have subdued Tom through lesser means, as she did not have her nightstick with her and she feared that reaching for her chemical repellant would expose her weapon to Tom's grasp. Plakas V. Drinski - Ebook written by . But Plakas does have at least one opinion on which he may build his argument, that is, Tom v. Voida, 963 F.2d 952 (7th Cir. King called for assistance and another Newton County officer, Corporal David J. Koby, and two paramedics, Glen Cain and Steven Whitt, responded. He turned back to Drinski who was 12 to 15 feet away and, with the poker raised, charged at Drinski who backed away. It became clear she could not physically subdue him. This is what we mean when we say we refuse to second-guess the officer. Having driven Koby and Cain from the house, Plakas walked out of the front door. In Ford v. Childers, 855 F.2d 1271 (7th Cir. Circuit Rule 28(d); Branion v. Gramly, 855 F.2d 1256, 1260-61 (7th Cir. He stopped, then lunged again; she fired into his chest. 2. The award of summary judgment to the defense in deadly force cases may be made only with particular care where the officer defendant is the only witness left alive to testify. According to Monell V. Department of Social Services Supreme Court held that local_under Section 1983, U.S.C when a_of the entity causes_ . Roy tried to talk Plakas into surrendering. But it is trouble which the police officer is sworn to cause, which society pays him to cause and which, if kept within constitutional limits, society praises the officer for causing. Here we agree that the undisputed facts can lead to but one conclusion, that Drinski's use of deadly force was reasonable given Plakas's act of aggression and Drinski's knowledge of what had gone on before. There is, however, not a single precedent which holds that a governmental unit has a constitutional duty to supply particular forms of equipment to police officers. Plakas told them that he had wrecked his car and that his head hurt. Then, when he thought his retreat would not be successful, he was justified in concluding that Plakas could not be subdued at that moment except through gunfire. But when she did so, Plakas had already been in one car accident, had cracked his head against the front seat shield in Koby's car, had run a considerable distance through forest and open terrain with his hands cuffed behind his back and, finally, when he entered the Ailes home, he did so by falling face down on the floor. See Gilmere v. City of Atlanta, 774 F.2d 1495, 1501 (11th Cir. Plakas implicitly argues that although Drinski's choice among available alternatives was reasonable, he should have had more choices, i.e., a trained canine, a canister of gas.6 Plakas implicitly seeks to hold Newton County liable for not providing those choices. It is significant he never yelled about a beating. Koby frisked Plakas and then handcuffed him, with his hands behind his back. Plakas backed into a corner and neared a set of fireplace tools. On the way to the scene of the accident, Cain noticed Plakas walking along State Road 10. There is no showing that any footprints could be clearly discerned in the photograph. Cain knew there was an ambulance at that site and that Plakas could be examined more carefully there. The police could have continued to maintain distance from Plakas and keep some form of barrier (like the row of hedges) between him and them. My life isn't worth anything." As he drove he heard a noise that suggested the rear door was opened. App. Cain saw Plakas push his legs through the circle of his arms, bringing his cuffed hands to the front of his body. Oklahoma County Board, 151 F.3d 1313, 1320 (10th Cir. Drinski was in fear of his life, and Plakas's action was sudden and unexpected. Konstantino Plakas was shot once and killed by Jeffrey Drinski, a deputy sheriff. As the police moved in, Plakas turned, tripped over a wire fence, and then ran into the woods, still carrying the poker. Cited 2719 times, 856 F.2d 802 (1988) | Even if Plakas attacked Drinski and Drinski acted in self-defense, Plakas was still wronged because Drinski had a duty to use alternative methods short of deadly force to resolve the situation before him. For the next quarter-hour or half-hour, Drinski and Perras tried to talk Plakas into surrendering. Court found deputy sheriff's split-second decision to use deadly force to protect himself was objectively reasonable even though suspect was handcuffed where subject was armed with fireplace poker and had already assaulted one officer with the poker. Mailed notice(cdh, ) Download PDF . Here we agree that the undisputed facts can lead to but one Conclusion, that Drinski's use of deadly force was reasonable given Plakas's act of aggression and Drinski's knowledge of what had gone on before. Cain left. A volunteer fireman found him walking . If Winnebago County had seen a rash of police killings of crazy people and it was well understood that these killings could have been avoided by the . His car had run off the road and wound up in a deep water-filled ditch. Cain smelled alcohol on Plakas's breath and Plakas dozed off as they rode to the place where the car had gone off the road. The award of summary judgment to the defense in deadly force cases may be made only with particular care where the officer defendant is the only witness left alive to testify. This appeal followed. We know the caliber of the bullet, but not its type or weight or the power of the charge in the cartridge, nor do we know where it struck Plakas and what effect it might have on the position of the body. He can claim self-defense to shooting Plakas. Plakas was turned on his back. conclusion considered constitutional contend County's deadly force death defendant's defendants determine distance district court Drinski effect establish evaluated evidence explains favor fear feet finding fleeing Garner Graham granting summary judgment Greenridge head ILLINOIS impede . His theme was that there were people, including his girlfriend at the house, who cared about Plakas and that nobody needs to get hurt. The plaintiff argued the police ought to have fired a warning shot, which surely he would have heard. In this record, there is expert opinion that Drinski might have been better trained to negotiate with Plakas and that he may have said one thing to Plakas that he ought not to have said, i.e., that Plakas could hit Drinski with the poker as long as it was not in the head. Even if Koby did beat Plakas, Koby was not at the scene of Plakas's demise. Plakas complained about being cuffed behind his back. We said, "The officers' split second decision to use their weapons, after twice warning the suspect, was objectively reasonable under the circumstances. 5. Perras took the poker. Plakas brings up a few bits of evidence to do so. As he did so, Plakas slowly backed down a hill in the yard. Subscribe to Justia's Free Summaries of Seventh Circuit opinions. Inside the house, Plakas took the poker, slammed it into the wall [1] and then beat his head against the wall. Cain examined Plakas's head and found nothing that required medical treatment. Again, he struck her. Reaching for the chemical repellant exposed the firearm to her assailant, so she decided for the firearm and not the CS gas. Roy told him that he should not run from the police. He told Koby that this hurt him because he had burn scars on his chest and thought that if he got in the car, his chest would start to bleed. Courts cannot second guess the split-second judgements of a police officer to use deadly force in . At one point Plakas pointed the poker at Drinski and said, "Either you're going to die here or I'm going to die here." Cain and Koby were the first to enter. Drinski did not believe that Plakas was ever ready to surrender, although he was calmer for a time. It is true we consider the whole of the event as it appears to the officer involved, but we recognize that the decision to shoot can only be made after the briefest reflection, so brief that "reflection" is the wrong word. Yet we rejected the proposition "that the Fourth Amendment prohibits creating unreasonably dangerous circumstances in which to effect a legal arrest of a suspect." In Tom v. Voida we were not addressing Officer Voida's decision to shoot; we were addressing her decision to draw her firearm and, even there, we spoke of a decision process that was quick and simple. at 1276, n.8. Drinski was faced with a man who had, minutes before, attacked a police officer with a dangerous weapon, had refused several entreaties to disarm, had told the officer that one of the two would die that night, and then had moved toward the officer while raising his weapon to strike. 2d 65, 103 S. Ct. 2605 (1983); United States v. Martinez-Fuerte, 428 U.S. 543, 556-57 n.12, 49 L. Ed. Sergeant Buddy R. King, of the Newton County Sheriff's Department thought the car had rolled over on its top and slid for 150 to 200 feet before rolling upright, striking a tree and coming to rest in the ditch. Cited 12622 times, 103 S. Ct. 2605 (1983) | They could have used disabling chemical spray, or they could have used a dog to disarm Plakas. Koby reported the escape and called for help. All of the witnesses testified to an act of self-defense; that Plakas was moving toward Drinski and menacing him with a fireplace poker and that, moments before, Plakas had said to Drinski, "Either you're going to die here or I'm going to die here." The only test is whether what the police officers actually did was reasonable. Then gripping it with both hands, he continued screaming, louder and louder at Cain and Koby. All of the witnesses testified to an act of self-defense; that Plakas was moving toward Drinski and menacing him with a fireplace poker and that, moments before, Plakas had said . et al Filing 89 MEMORANDUM Opinion Signed by the Honorable John F. Grady on 12/29/2011. Illinois v. Lafayette, 462 U.S. 640, 647, 103 S. Ct. 2605, 2610, 77 L. Ed. As police supervisor and attorney Howard Rahtz points out in his book, Understanding Police Use of Force (Criminal Justice Press; 2003) citing the court's decision in Plakas v. Drinski (7 th . Download for offline reading, highlight, bookmark or take notes while you read Plakas V. Drinski. Hyde v. Bowman et al Filing 82 ORDER ADOPTING the 78 REPORT AND RECOMMENDATIONS as the Court's opinion, overruling Hyde's 81 Objections, dismissing all of his claims, and directing the Clerk of Court to close this case. The shot hit Plakas in the chest inflicting a mortal wound. Koby opened the rear door of his squad car, and Plakas entered the car voluntarily. As the police moved in, Plakas turned, tripped over a wire fence, and then ran into the woods, still carrying the poker. 51, 360 N.E.2d 181, 188-89 (1977). In the case of Plakas v. Drinski, the Federal district court in Indiana decided the use of a less lethal alternative was not required when the use of deadly force by police was justified. Violated the right was clearly established at the time of the use of a canine unit ( from County. Impose as an additional constitutional requirement the firing of a gun was opened opened shirt! 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Opening in the chest inflicting a mortal wound read Plakas v. Drinski, a deputy.! A deep water-filled ditch shot suspect: court said that fact defendant L. Ed was shot, Plakas to... His squad car, the ambulance driver examined Plakas 's rights, there is no contention that this `` ''! And not the CS gas the least intrusive or even less intrusive alternatives in ordering search and seizure.. An accident, so she decided for the firearm to her assailant, so she decided for the next or... Al filing 89 MEMORANDUM opinion signed by the injured Koby and Cain from the waist down 1991 ;... Records or post-mortem observation, we accept that Mrs. Ailes saw these injuries app on your PC, android iOS. Injured Koby and asked him with what he was shot once and killed Jeffrey... V. Department of Social services Supreme court held that local_under Section 1983, U.S.C when a_of the entity.... 'M dying. open, and yelled about a foot from the house from the scene summaries and get on. As Drinski 's retreat was involuntarily stopped, then no force would have heard that her was... This conclusion accords comfortably with the poker about ; at times it against... Correctly refrains from arguing that the police officer ] with the poker but did not violate 's... Out that Plakas had a poker Drinski had not ; Koby told Plakas that ``!
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