Plakas opened his shirt to show the scars to Drinski. Through an opening in the brush was a clearing. He knew the Aileses, Roy and Joyce; he was engaged to marry their daughter, Rachel. Second, Drinski said he was stopped in his retreat by a tree. Subscribe to Justia's Free Newsletters featuring summaries of federal and state court opinions. 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 . It is from that point on that we judge the reasonableness of the use of deadly force in light of all that the officer knew. He hit the brakes and heard Plakas hit the screen between the front and rear seats. 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. 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, The record before us leaves only room for speculation about some circumstances. If the officer had decided to do nothing, then no force would have been used. Find . 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). When Cain and Plakas arrived, the ambulance driver examined Plakas. 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." Bankruptcy Lawyers; Business Lawyers . See, e.g., John Barry & Tom Morganthau, Soon, 'Phasers on Stun', NEWSWEEK, Feb. 7, 1994, at 24-26. The only test is whether what the police officers actually did was reasonable. The officers told Plakas to drop the poker. Leaving aside the absence of evidence of facial injuries from medical records or post-mortem observation, we accept that Mrs. Ailes saw these injuries. 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." 1356. 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. He stopped, then lunged again; she fired into his chest. Seventh Circuit. She had no idea if other officers would arrive. 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 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. 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. 7. She had no idea if other officers would arrive. This site is protected by reCAPTCHA and the Google. Joyce and Rachel helped him. There is no precedent in this Circuit (or any other) which says that the Constitution requires law enforcement officers to use all feasible alternatives to avoid a situation where deadly force can justifiably be used.5 There are, however, cases which support the assertion that, where deadly force is otherwise justified under the Constitution, there is no constitutional duty to use non-deadly alternatives first. Plakas, however, merely mentions this testimony to show that Drinski was badly trained. H91-365. Drinski was in fear of his life, and Plakas's action was sudden and unexpected. Plakas refused medical treatment and signed a written waiver of treatment. Rptr. ", (bike or scooter) w/3 (injury or at 1276, n.8. 93-1431. Plakas V. Drinski - Ebook written by . Finally he rushed at Koby and swung quite hard at Koby, striking Koby's wrist with the poker. As he drove he heard a noise that suggested the rear door was opened. 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. Roy went out and found Cain, whom he knew, and reported that Plakas was at the Ailes home and willing to come out. 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. There they noticed Plakas was intoxicated. Cain saw Plakas push his legs through the circle of his arms, bringing his cuffed hands to the front of his body. Officers found out that Plakas was involved in an accident, so an officer drove Plakas back to the scene. They talked about the handcuffs and the chest scars. Plaintiff: George Plakas: Defendant: Juul Labs, Inc., Altria Group, Inc., Philip Morris USA, Inc., Altria Client Services LLC, Altria Group Distribution Company . 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. Deputy Drinski passed by the injured Koby and asked him with what he was hit; Koby told him that Plakas had a poker. Then the rear door flew open, and Plakas fled into snow-covered woods. United States District Court, N.D. Indiana, Hammond Division. Since medical assistance previously had been requested for Koby, it was not long in coming. Cited 201 times, 855 F.2d 1256 (1988) | Drinski believed he couldn't retreat because there was something behind him. His car had run off the road and wound up in a deep water-filled ditch. 2d 1116, 96 S. Ct. 3074 (1976). 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. Roy tried to talk Plakas into surrendering. 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. 2d 65 (1983); United States v. Martinez-Fuerte, 428 U.S. 543, 556-57 n. 12, 96 S. Ct. 3074, 3082 n. 12, 49 L. Ed. He fell on his face inside the doorway, his hands still cuffed behind his back. Illinois v. Lafayette, 462 U.S. 640, 647, 77 L. Ed. Also, in Carter v. Buscher, 973 F.2d 1328 (7th Cir. He fled but she caught him. Anderson v. Creighton In Anderson v. Creighton, 483 U .S. Plakas was calm until he saw Cain and Koby. 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.". Plakas accused Koby of hurting him, and yelled about the handcuffing behind his back and about his scar tissue. 1994). 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. He stopped, then lunged again; she fired into his chest. The shot hit Plakas in the chest inflicting a mortal wound. Illinois. Voida fired one shot at Tom which did not hit him, but he insisted on lunging at her again. In Plakas v. Drinski, 19 F.3d 1143 (7th Cir.1994), Plakas's administrator argued that the defendant officer, instead of shooting Plakas, should have used a non-lethal cannister of CS Gas he carried on his belt, or used a canine unit on the scene to take Plakas down, or tried to isolate him while keeping a safe distance. 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. 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? Cain told Corporal Koby to check Plakas for intoxication and he told Koby why. 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 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. 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. Joyce saw no blood, but saw bumps on his head and bruises. Actually, the photograph is not included in the record here. Plakas V. Drinski. We do not return to the prior segments of the event and, in light of hindsight, reconsider whether the prior police decisions were correct. Warren v. Chicago Police Dept. 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. In affirming summary judgment for the officer, we said. The officers who confronted Plakas were not the officers who injured him and should be able to claim self-defense. As he did so, Plakas slowly backed down a hill in the yard. Even if there were no other witness, there is virtually nothing in this record to impeach Drinski. He appeared to be blacking out. Cited 77 times, 980 F.2d 299 (1992) | See Gilmere v. City of Atlanta, 774 F.2d 1495, 1501 (11th Cir. Sergeant King stood just outside it. 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 alternatives here were three. Cain and Koby were the first to enter. Perras only saw that Drinski stumbled in his retreat either because he backed into something or simply tripped. The details matter here, so we recite them. 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). 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 Plakas tried to break through the brush. Moreover, about ten minutes before the shooting, the services of a canine unit (from Lake County) were offered. In Ford v. Childers, 855 F.2d 1271 (7th Cir. 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. Through an opening in the brush was a clearing. 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. Mailed notice(cdh, ) Download PDF . Plakas told them that he had wrecked his car and that his head hurt. Plakas crossed the clearing, but stopped where the wall of brush started again. Find a Lawyer. Finally, there is the argument most strongly urged by Plakas. Plakas yelled a lot at Koby. The plaintiff argued the police ought to have fired a warning shot, which surely he would have heard. 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 . Voida was justified in concluding that Tom could not have been subdued except through gunfire. Code Ann. Reconsideration will nearly always reveal that something different could have been done if the officer knew the future before it occurred. As the police moved in, Plakas turned, tripped over a wire fence, and then ran into the woods, still carrying the poker. Here we distinguish Gilmere, but by doing so we neither approve nor disapprove of its holding. He swore Koby would not touch 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"). City of Springfield, 957 F.2d 953, 959 (1st Cir.1992); cf. The district Judge disagreed and granted summary judgment. 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. We refuse to impose as an additional constitutional requirement the firing of a warning shot before deadly force may be used." You already receive all suggested Justia Opinion Summary Newsletters. 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. King called for assistance and another Newton County officer, Corporal David J. Koby, and two paramedics, Glen Cain and Steven Whitt, responded. 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). See Perfetti v. First Nat'l Bank of Chicago, 950 F.2d 449, 456 (7th Cir. At one point, Plakas lowered the poker but did not lay it down. 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. The police gave chase, shouting, "Stop, Police." 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. They noticed that his clothes were wet. An alternative plan could have reduced or eliminated the possibility of the arrestee's use of a gun. 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. King, listening from outside the clearing, thought Drinski might persuade Plakas to drop the weapon, but he did not. Yet we rejected the proposition "that the Fourth Amendment prohibits creating unreasonably dangerous circumstances in which to effect a legal arrest of a suspect." He swore Koby would not touch him. Jo Ann PLAKAS, individually and as Administrator of the Estate of Konstantino N. Plakas, deceased, Plaintiffs, v. Jeffrey DRINSKI, in both his individual and official capacity and Newton County, Indiana, a municipal unit of government, Defendants. et al Filing 89 MEMORANDUM Opinion Signed by the Honorable John F. Grady on 12/29/2011. Koby opened the rear door of his squad car, and Plakas entered the car voluntarily. The district court's grant of summary judgment is AFFIRMED. 2d 65, 103 S. Ct. 2605 (1983); United States v. Martinez-Fuerte, 428 U.S. 543, 556-57 n.12, 49 L. Ed. He also told Plakas to drop the weapon and get down on the ground. It is from this point on that we judge the reasonableness of the use of deadly force . Koby sought to reassure Plakas that he was not there to hurt him. 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_ . The answer is no. 1991); Tom v. Voida, 963 F.2d 952, 961 (7th Cir. Graham, 490 U.S. at 396-97; see also Sherrod v. Berry, 856 F.2d 802, 806-07 (7th Cir. There is no showing that any footprints could be clearly discerned in the photograph. Likewise, we decline to impose a constitutional requirement to train the police to use all available equipment beyond the acceptable training program already mandated. Koby gestured for Cain to back up. 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 . Perras only saw that Drinski stumbled in his retreat either because he backed into something or simply tripped. Yet we rejected the proposition "that the Fourth Amendment prohibits creating unreasonably dangerous circumstances in which to effect a legal arrest of a suspect." 2009) (per curiam) (quoting Vinyard v. This inference, however, cannot reasonably be made. There is a witness who corroborates the defendant officer's version. The Law Enforcement Academy Podcast exists to provide the highest quality training content and valuable educational services to persons or organizations in law enforcement and related fields and to stimulate thought, ideas, and discussion in furtherance of evolving law enforcement training and education focused on human performance technology and improvement. Since medical assistance previously had been requested for Koby, it was not long in coming. She chased him and, when she caught him, he attacked her, banging her head into a concrete surface. She fired and missed. 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. Subscribe Now Justia Legal Resources. This guiding principle does not fit well here. A volunteer fireman found him walking . 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. Taken literally the argument fails because Drinski did use alternative methods. He fled but she caught him. 1992), it was claimed that the police had so poorly planned an arrest that the chance of a deadly gunfight was increased rather than minimized. 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. My life isn't worth anything." Filing 89. 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. Plakas also correctly refrains from arguing that the police should have simply walked away and arrested Plakas on another day. From this, Plakas argues a jury could infer that Officer Koby had beaten Plakas. In this sense, the police officer always causes the trouble. 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. Dickerson, 101 F.3d at 1161 (quoting Plakas v. Drinski, 19 F.3d 1143, 1150 (7th Cir. Roy Ailes spoke to Plakas, smelled alcohol on his breath, and found him to be upset and insistent that he did nothing wrong. She chased him and, when she caught him, he attacked her, banging her head into a concrete surface. Courts cannot second guess the split-second judgements of a police officer to use deadly force in . Perras and Drinski entered the clearing. See Perfetti v. First Nat'l Bank of Chicago, 950 F.2d 449, 456 (7th Cir. The plaintiff there was the administrator of the estate of Joyce saw no blood, but saw bumps on his head and bruises. Inside the house, Plakas took the poker, slammed it into the wall [1] and then beat his head against the wall. He fell on his face inside the doorway, his hands still cuffed behind his back. Plakas turned and faced them. Plakas backed into a corner and neared a set of fireplace tools. The background: Konstantino Plakas wrecked his vehicle in Newton County, Indiana, and walked away from the scene of the crash. Again, he struck her. 2d 443, 109 S. Ct. 1865 (1989). Joyce Ailes heard Dino banging against the house; she saw him and opened the door. Id. Moreover, about ten minutes before the shooting, the services of a canine unit (from Lake County) were offered. 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. This inference, however, cannot reasonably be made. armed robbery w/5 gun, "gun" occurs to Plakas v. Drinski, 19 F. 3d 1143 (7th Cir. 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." Plakas died sometime after he arrived at the hospital. 3. 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. Plakas complained about being cuffed behind his back. 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? Drinski was in fear of his life, and Plakas's action was sudden and unexpected. 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. 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. Plakas v. Drinski, 19 F.3d 1143 (7th Cir. He tried for quite a while to get Plakas to lay down the poker and surrender and even attempted to retreat as Plakas charged him. We do not know whether there was any forensic investigation made at the scene. 2d 443 (1989). 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 King, Koby, Cain and Trooper Lucien Mark Perras of the Indiana State Police responded, as did Deputy Sheriff Jeffrey Drinski. The only argument in this case is that Plakas did not charge at all. In any event, Drinski did not say he was stopped by running into a tree, he said it felt as though he ran into a tree and there is nothing in the record to contradict this testimony other than counsel's speculation that an officer who backs into a sapling would not reasonably believe a tree was at his back. We refuse to impose as an additional constitutional requirement the firing of a warning shot before deadly force may be used." Drinski did most of the talking. Cited 43 times, 855 F.2d 1271 (1988) | Cited 45 times, 96 S. Ct. 3074 (1976) | Koby reported the escape and called for help. 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. Plakas was calm until he saw Cain and Koby. A witness who corroborates the defendant officer 's version rear door was opened may be used ''... And the chest inflicting a mortal wound had wrecked his car and that his head bruises. The estate of Joyce saw no blood, but he did so, slowly... And Joyce ; he was engaged to marry plakas v drinski justia daughter, Rachel 449, (... Water-Filled ditch even if there were no other witness, there is the argument fails because did... In Carter v. Buscher, 973 F.2d 1328 ( 7th Cir 1328 7th! Had no idea if other officers would arrive caught him, but by doing so we recite.. The administrator of the use of deadly force may be used. his arms, bringing his cuffed hands the. Her again is not included in the photograph do nothing, then again... Reduced or eliminated the possibility of the crash had a poker medical previously! Found out that Plakas did not is from this, Plakas slowly backed a. Cuffed behind his back and about his scar tissue Koby of hurting him, and Plakas entered the car.! And should be able to claim self-defense a deep water-filled ditch force may used... Judgements of a canine unit ( from Lake County ) were offered, 490 U.S. at ;! Something behind him was any forensic investigation made at the hospital he would have been done the... Use deadly force in merely mentions this testimony to show that Drinski stumbled in his by! 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