2d 443, 109 S. Ct. 1865 (1989). 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. Cain left. 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. Perhaps we ought not to consider this theory since it was not pled, but it is of no use to Plakas in any event. Plakas agreed that Roy should talk to the police. Plakas v. Drinski, 19 F.3d 1143 (7th Cir. Tennessee v. Garner, 471 U.S. 1, 3, 105 S. Ct. 1694, 1697, 85 L. Ed. There is no contention that this "invitation" immediately preceded the shooting or caused Plakas to charge Drinski. 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? Heres how to get more nuanced and relevant 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. There is no showing that any footprints could be clearly discerned in the photograph. She decided she would have to pull her weapon so that he would not get it. He also told Plakas to drop the weapon and get down on the ground. They could have used disabling chemical spray, or they could have used a dog to disarm Plakas. Drinski's retreat was involuntarily stopped, either by his backing into a tree or by a near stumble of some sort. Drinski's retreat was involuntarily stopped, either by his backing into a tree or by a near stumble of some sort. Drinski and Perras had entered the house from the garage and saw Plakas leave. Read this book using Google Play Books app on your PC, android, iOS devices. 1980); Montague v. State, 266 Ind. Since medical assistance previously had been requested for Koby, it was not long in coming. You're all set! Then the rear door flew open, and Plakas fled into snow-covered woods. Plakas, however, merely mentions this testimony to show that Drinski was badly trained. He picked one of them up, a 2-3 foot poker with a hook on its end. Such that an objectively reasonable officer would have understood that the conduct violated the right. She fired and missed. 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. 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. 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. 1989). See Perfetti v. First Nat'l Bank of Chicago, 950 F.2d 449, 456 (7th Cir. 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. 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. It is obvious that we said Voida thought she had no alternatives. Civ. right or left of "armed robbery. Plaintiff: Constantinos Plakas: Defendant: Urban Distribution Systems, Inc. and Robert DeMartin: Case Number: 1:2013cv02533: Filed: April 26, 2013: Court: 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. 1994) 37 reese v. 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. 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. Cain and Koby were the first to enter. Plakas turned and faced them. 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 . Twice the police called out, "Halt, police," but the plaintiff may not have heard. King, listening from outside the clearing, thought Drinski might persuade Plakas to drop the weapon, but he did not. In her response to Drinski's Motion for Summary Judgment, Plaintiff argues that the Indiana Dead Man's Statute, Ind. She decided she would have to pull her weapon so that he would not get it. They talked about the handcuffs and the chest scars. Yet we rejected the proposition "that the Fourth Amendment prohibits creating unreasonably dangerous circumstances in which to effect a legal arrest of a suspect." Plakas ran to the Ailes home located on a private road north of State Road 10. She did not have her night stick. 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. 2d 772 (1996). Koby opened the rear door of his squad car, and Plakas entered the car voluntarily. The plaintiff argued the police ought to have fired a warning shot, which surely he would have heard. The only argument in this case is that Plakas did not charge at all. Plakas v. Drinski, 19 F. 3d 1143 (7th Cir. She did not have her night stick. This guiding principle does not fit well here. 1992). The details matter here, so we recite them. 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. Cited 45 times, 96 S. Ct. 3074 (1976) | Cain approached Plakas and saw that Plakas's clothing was wet from the waist down. 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. Cain examined Plakas's head and found nothing that required medical treatment. Code Ann. When paramedic Whitt arrived at the clearing, he found Plakas laying about a foot from the brush at one corner of the clearing. Again, he struck her. Filing 82. 1994). In Koby's car, the rear door handles are not removed. 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. Plakas told them that he had wrecked his car and that his head hurt. 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. Cain left. In affirming summary judgment for the officer, we said. Konstantino Plakas was shot once and killed by Jeffrey Drinski, a deputy sheriff. His car had run off the road and wound up in a deep water-filled ditch. Cited 43 times, 855 F.2d 1271 (1988) | Our historical emphasis on the shortness of the legally relevant time period is not accidental. Indeed, Plakas merely states this theory, he does not argue it. Then gripping it with both hands, he continued screaming, louder and louder at Cain and Koby. 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. Id. Plakas refused medical treatment and signed a written waiver of treatment. There is no showing that any footprints could be clearly discerned in the photograph. Cited 428 times, 109 S. Ct. 1865 (1989) | 2d 1116, 96 S. Ct. 3074 (1976). 251, 403 N.E.2d 821, 823, 825 (Ind. The alternatives here were three. Salas v. Carpenter, 980 F.2d 299, 310 (5th Cir. 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. This inference, however, cannot reasonably be made. The clearing was small, but Plakas and the officers were ten feet apart. 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. 3. Circuit Rule 28(d); Branion v. Gramly, 855 F.2d 1256, 1260-61 (7th Cir. 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. The district court's grant of summary judgment is AFFIRMED. He appeared to be blacking out. He tried to avoid violence. 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"). at 1332. Find . Drinski blocked the opening in the brush where all had entered the clearing. 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." Plakas did agree to go to the Sheriff's Department to be tested for intoxication. There is a witness who corroborates the defendant officer's version. Drinski was in fear of his life, and Plakas's action was sudden and unexpected. Abstract. They called Plakas "Dino." 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. Cain knew there was an ambulance at that site and that Plakas could be examined more carefully there. 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. Cited 42 times, 909 F.2d 324 (1990) | Perras would have shot Plakas if Drinski had not. Salas v. Carpenter, 980 F.2d 299, 310 (5th Cir. Perras only saw that Drinski stumbled in his retreat either because he backed into something or simply tripped. Drinski believed he couldn't retreat because there was something behind him. The officers told Plakas to drop the poker. United States District Court, N.D. Indiana, Hammond Division. Even if there were no other witness, there is virtually nothing in this record to impeach Drinski. 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. Perras and Drinski entered the clearing. Author: Martin A. Schwartz ISBN: 1454823038 Format: PDF Release: 2013 Language: en View 1994), and Plakas v.Drinski, 19 F.3d 1143 (7th Cir. Moreover, about ten minutes before the shooting, the services of a canine unit (from Lake County) were offered. Koby reported the escape and called for help. 1992). Officers found out that Plakas was involved in an accident, so an officer drove Plakas back to the scene. This is not the kind of weighing of least deadly alternatives that Plakas would have us require of Drinski. Finally, there is the argument most strongly urged by Plakas. Drinski and Perras had entered the house from the garage and saw Plakas leave. He fled but she caught him. Appx. Subscribe to Justia's Free Summaries of Eleventh Circuit opinions. 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." Reaching for the chemical repellant exposed the firearm to her assailant, so she decided for the firearm and not the CS gas. At times Plakas moved the poker about; at times it rested against the ground. Cited 201 times, 855 F.2d 1256 (1988) | Plakas was transported to the jail and Plakas escaped from the patrol car. He fell on his face inside the doorway, his hands still cuffed behind his back. There is a witness who corroborates the defendant officer's version. 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. 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. Deputy Drinski passed by the injured Koby and asked him with what he was hit; Koby told him that Plakas had a poker. This is not a case where an officer claims to have used deadly force to prevent an escape. We always judge a decision made, as Drinski's was, in an instant or two. The record before us leaves only room for speculation about some circumstances. Plakas was turned on his back. 3. 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_ . Even if there were no other witness, there is virtually nothing in this record to impeach Drinski. The details matter here, so we recite them. 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). Elizabeth A. Knight (argued), Colleen Considine Coburn, Knight, Hoppe, Fanning & Knight, Des Plaines, IL, Daniel C. Blaney, Blaney, Casey & Walton, Morocco, IN, Janella L. Barbrow, Schmidt & Barbrow, Wheaton, IL, for Jeffrey Drinski and Newton County, Ind. 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)). In Koby's car, the rear door handles are not removed. An alternative plan could have reduced or eliminated the possibility of the arrestee's use of a gun. Plakas V. Drinski. As the police moved in, Plakas turned, tripped over a wire fence, and then ran into the woods, still carrying the poker. 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. Circuit Rule 28(d); Branion v. Gramly, 855 F.2d 1256, 1260-61 (7th Cir. 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. Koby also thought that he would have a problem with Plakas if he uncuffed 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. 1993 . He knew the Aileses, Roy and Joyce; he was engaged to marry their daughter, Rachel. 2d 1, 105 S. Ct. 1694 (1985). Roy tried to talk Plakas into surrendering. This is not a case where an officer claims to have used deadly force to prevent an escape. From a house Plakas grabbed a fire poker and threaten the . 1992). Koby frisked Plakas and then handcuffed him, with his hands behind his back. Cain saw Plakas push his legs through the circle of his arms, bringing his cuffed hands to the front of his body. 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). He raised or cocked the poker but did not swing it. 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. Subscribe to Justia's Free Summaries of Seventh Circuit opinions. Dockets & Filings. See Perfetti v. First Nat'l Bank of Chicago, 950 F.2d 449, 456 (7th Cir. When Cain and Plakas arrived, the ambulance driver examined Plakas. 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. 2d 65, 103 S. Ct. 2605 (1983); United States v. Martinez-Fuerte, 428 U.S. 543, 556-57 n.12, 49 L. Ed. 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. near:5 gun, "gun" occurs to either to Perhaps we ought not to consider this theory since it was not pled, but it is of no use to Plakas in any event. Voida fired one shot at Tom which did not hit him, but he insisted on lunging at her again. Dickerson, 101 F.3d at 1161 (quoting Plakas v. Drinski, 19 F.3d 1143, 1150 (7th Cir. The shot hit Plakas in the chest inflicting a mortal wound. Then the rear door flew open, and Plakas fled into snow-covered woods. 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. Konstantino Plakas was shot once and killed by Jeffrey Drinski, a deputy sheriff. 1991); Tom v. Voida, 963 F.2d 952, 961 (7th Cir. There may be state law rules which require retreat, but these do not impose constitutional duties. Second, Drinski said he was stopped in his retreat by a tree. Second, Drinski said he was stopped in his retreat by a tree. Koby reported the escape and called for help. Plakas remained semiconscious until medical assistance arrived. 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 In any selfdefense case, a defendant knows that the only person likely to contradict him or her is beyond reach. 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. . Finally he rushed at Koby and swung quite hard at Koby, striking Koby's wrist with the poker. Roy told him that he should not run from the police. 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. He moved toward her. 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 Honorable James B. Zagel, District Judge of the United States District Court for the Northern District of Illinois, is sitting by designation. It is significant he never yelled about a beating. Plakas opened his shirt to show the scars to Drinski. Plakas was calm until he saw Cain and Koby. defendant cites Plakas v. Drinski, 19 F.3d 1143, 1148 (7th Cir. Leaving aside the absence of evidence of facial injuries from medical records or post-mortem observation, we accept that Mrs. Ailes saw these injuries. Seventh Circuit. As he did so, Plakas slowly backed down a hill in the yard. The alternatives here were three. Plakas v. Drinski, 19 F.3d 1143 (7th Cir. Anderson v. Creighton In Anderson v. Creighton, 483 U .S. United States Court of Appeals, Seventh Circuit. at 1276, n.8. Bankruptcy Lawyers; Business Lawyers . 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. 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. All of this means Drinski was properly standing in the clearing, gun in hand, several feet away from Plakas, who charged him with the poker raised. See, e.g., John Barry & Tom Morganthau, Soon, 'Phasers on Stun', NEWSWEEK, Feb. 7, 1994, at 24-26. 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. Perras and Drinski entered the clearing. App. 1977). There is no contention that this "invitation" immediately preceded the shooting or caused Plakas to charge Drinski. Also, in Carter v. Buscher, 973 F.2d 1328 (7th Cir. Then Plakas tried to break through the brush. They called Plakas "Dino." 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. When Cain and Plakas arrived, the ambulance driver examined Plakas. Filing 920070312 After the weapon was out, she told him three times, "Please don't make me shoot you." 1985) (en banc). We do not know whether there was any forensic investigation made at the scene. Joyce saw no blood, but saw bumps on his head and bruises. We do not return to the prior segments of the event and, in light of hindsight, reconsider whether the prior police decisions were correct. 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. He moaned and said, "I'm dying." He picked one of them up, a 2-3 foot poker with a hook on its end. 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? 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. Cain stopped and spoke to Plakas who said he was fine except that he was cold. It is significant he never yelled about a beating. 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) | 1983 against Drinski and Newton County to recover damages in connection with her son's death. Actually, the photograph is not included in the record here. In Ford v. Childers, 855 F.2d 1271 (7th Cir. 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. Koby frisked Plakas and then handcuffed him, with his hands behind his back. 4. The police could have tried to put barriers between themselves and Plakas and maintain distance from him. He fled but she caught him. Finally he rushed at Koby and swung quite hard at Koby, striking Koby's wrist with the poker. Paul F. Michel (argued), Thomas McClure, Rosa A. Eliades, Elliott & McClure, Bourbonnais, IL, for Jo Ann PLAKAS. Nor does he show how such a rule of liability could be applied with reasonable limits. Joyce and Rachel helped him. Drinski did most of the talking. 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"). 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. She alleges that her son was armed with only a fireplace poker and posed no serious threat to the safety of Drinski or others. 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. 2. 1992). The answer is no. 2d 1116 (1976). 2013) (quoting Graham, 490 U.S. at 396). 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. 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. . Taken literally the argument fails because Drinski did use alternative methods. 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. He fell on his face inside the doorway, his hands still cuffed behind his back. Find a Lawyer. According to a paramedic at the scene, Plakas appeared to be intoxicated. We said, " [T]he officers' split second decision to use their weapons, after twice warning the suspect, was objectively reasonable under the circumstances. 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. But did we hold that this imposes a constitutional duty to use (or at least consider) the use of all alternatives?
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