", Bidirectional search: in armed robbery She had no idea if other officers would arrive. Then gripping it with both hands, he continued screaming, louder and louder at Cain and Koby. 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. 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"). After he was shot, Plakas fell to Drinski's right and lay face down semiconscious on the ground. They could have used disabling chemical spray, or they could have used a dog to disarm Plakas. Cain left. He fell on his face inside the doorway, his hands still cuffed behind his back. 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 v. drinski, 19 f.3d 1143 (7th cir. She did not have her night stick. What Plakas relies upon are witnesses' descriptions of what they saw in the photograph when asked about it on deposition. The officers who confronted Plakas were not the officers who injured him and should be able to claim self-defense. 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. Joyce Ailes heard Dino banging against the house; she saw him and opened the door. 1988) (en banc) . 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. 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. Plakas v. Drinski, 19 F.3d 1143 (7th Cir. 3. Joyce saw no blood, but saw bumps on his head and bruises. Perhaps we ought not to consider this theory since it was not pled, but it is of no use to Plakas in any event. 1994), in which he states: . Dockets & Filings. 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." 51, 360 N.E.2d 181, 188-89 (1977). Plakas brings up a few bits of evidence to do so. 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. 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. accident), Expand root word by any number of 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). 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." He fled but she caught him. Perras took the poker. Plakas also correctly refrains from arguing that the police should have simply walked away and arrested Plakas on another day. App. 2d 1, 105 S. Ct. 1694 (1985). 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. 1994) - ". Voida was justified in concluding that Tom could not have been subdued except through gunfire. He knew the Aileses, Roy and Joyce; he was engaged to marry their daughter, Rachel. Roy went out and found Cain, whom he knew, and reported that Plakas was at the Ailes home and willing to come out. et al Filing 89 MEMORANDUM Opinion Signed by the Honorable John F. Grady on 12/29/2011. 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. They talked about the handcuffs and the chest scars. 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_ . 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 they noticed Plakas was intoxicated. 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. 1992). The officers told Plakas to drop the poker. What Drinski did here is no different than what Voida did. 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. 1356. Id. 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? Plakas did agree to go to the Sheriff's Department to be tested for intoxication. Moreover, about ten minutes before the shooting, the services of a canine unit (from Lake County) were offered. 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. Id. Id. 1994); Martinez v. County of Los Angeles, 47 Cal. 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. 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. The alternatives here were three. 251, 403 N.E.2d 821, 823, 825 (1980); Montague v. State, 266 Ind. 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). This site is protected by reCAPTCHA and the Google. Reconsideration will nearly always reveal that something different could have been done if the officer knew the future before it occurred. at 1276, n. 8. The shot hit Plakas in the chest inflicting a mortal wound. Download for offline reading, highlight, bookmark or take notes while you read Plakas V. Drinski. 2d 1 (1985). Koby moved away and tried to come in the room from another door, but Plakas chased him away, swinging the poker. Even if Koby did beat Plakas, Koby was not at the scene of Plakas's demise. In Koby's car, the rear door handles are not removed. 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 died sometime after he arrived at the hospital. In Ford v. Childers, 855 F.2d 1271 (7th Cir. 1983 against Drinski and Newton County to recover damages in connection with her son's death. 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. Cain told Corporal Koby to check Plakas for intoxication and he told Koby why. 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. Cain saw Plakas push his legs through the circle of his arms, bringing his cuffed hands to the front of his body. Joyce saw no blood, but saw bumps on his head and bruises. Warren v. Chicago Police Dept. Perras only saw that Drinski stumbled in his retreat either because he backed into something or simply tripped. She did not have her night stick. Drinski blocked the opening in the brush where all had entered the clearing. Plakas backed into a corner and neared a set of fireplace tools. Cain knew there was an ambulance at that site and that Plakas could be examined more carefully there. Joyce and Rachel helped him. Koby gestured for Cain to back up. See, e.g., John Barry & Tom Morganthau, Soon, 'Phasers on Stun', NEWSWEEK, Feb. 7, 1994, at 24-26. Filing 920070312 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 self-defense even if, as Plakas's expert maintains, the man is attempting "suicide by police.". They noticed that his clothes were wet. Finally he rushed at Koby and swung quite hard at Koby, striking Koby's wrist with the poker. 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. 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. Subscribe Now Justia Legal Resources. There is no contention that this "invitation" immediately preceded the shooting or caused Plakas to charge Drinski. United States Court of Appeals . Yet we rejected the proposition "that the Fourth Amendment prohibits creating unreasonably dangerous circumstances in which to effect a legal arrest of a suspect." As he did so, Plakas slowly backed down a hill in the yard. Cited 96 times, 973 F.2d 1328 (1992) | In affirming summary judgment for the officer, we said. There is a witness who corroborates the defendant officer's version. 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. . In any selfdefense case, a defendant knows that the only person likely to contradict him or her is beyond reach. Cain left. Plakas agreed that Roy should talk to the police. Finally, there is the argument most strongly urged by Plakas. It is significant he never yelled about a beating. Even if there were no other witness, there is virtually nothing in this record to impeach Drinski. He raised or cocked the poker but did not swing it. He tried to avoid violence. An alternative plan could have reduced or eliminated the possibility of the arrestee's use of a gun. What Drinski did here is no different than what Voida did. Tennessee v. Garner, 471 U.S. 1, 3, 105 S. Ct. 1694, 1697, 85 L. Ed. 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. This is not a case where an officer claims to have used deadly force to prevent an escape. 378, 382 (5th Cir. Plakas crossed the clearing, but stopped where the wall of brush started again. Actually, the photograph is not included in the record here. See also Graham v. Connor, 490 U.S. 386, 396, 104 L. Ed. 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. 93-1431. See Reed v. Hoy, 909 F.2d 324, 330-31 (9th Cir. Roy tried to talk Plakas into surrendering. He picked one of them up, a 2-3 foot poker with a hook on its end. From this, Plakas argues a jury could infer that Officer Koby had beaten Plakas. 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. 1988) (en banc). near:5 gun, "gun" occurs to either to But did we hold that this imposes a constitutional duty to use (or at least consider) the use of all alternatives? 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. 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. Cited 2719 times, 856 F.2d 802 (1988) | Drinski was in fear of his life, and Plakas's action was sudden and unexpected. The officers who confronted Plakas were not the officers who injured him and should be able to claim self-defense. 1994)).Fifth Circuit: See Thomas v. Baldwin, 595 Fed. 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. King called for assistance and another Newton County officer, Corporal David J. Koby, and two paramedics, Glen Cain and Steven Whitt, responded. 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. Cited 12622 times, 103 S. Ct. 2605 (1983) | He stopped, then lunged again; she fired into his chest. 2d 443, 109 S. Ct. 1865 (1989). Hyde v. Bowman et al. Even if there were no other witness, there is virtually nothing in this record to impeach Drinski. See Perfetti v. First Nat'l Bank of Chicago, 950 F.2d 449, 456 (7th Cir. 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. 3. Taken literally the argument fails because Drinski did use alternative methods. ", (bike or scooter) w/3 (injury or Plakas v. Drinski, 19 F.3d 1143, 1146 (7th Cir. Sergeant King stood just outside it. 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. When paramedic Whitt arrived at the clearing, he found Plakas laying about a foot from the brush at one corner of the clearing. Plakas ran to the Ailes home located on a private road north of State Road 10. The time-frame is a crucial aspect of excessive force cases. 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. She alleges that her son was armed with only a fireplace poker and posed no serious threat to the safety of Drinski or others. This is what we mean when we say we refuse to second-guess the officer. 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. Subscribe to Justia's Free Newsletters featuring summaries of federal and state court opinions. 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 Cain stopped and spoke to Plakas who said he was fine except that he was cold. Plakas, however, merely mentions this testimony to show that Drinski was badly trained. 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. When Cain and Plakas arrived, the ambulance driver examined Plakas. 7. 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. Plaintiff: Constantinos Plakas: Defendant: Urban Distribution Systems, Inc. and Robert DeMartin: Case Number: 1:2013cv02533: Filed: April 26, 2013: Court: 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. This is not the kind of weighing of least deadly alternatives that Plakas would have us require of Drinski. Deputy Drinski passed by the injured Koby and asked him with what he was hit; Koby told him that Plakas had a poker. 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. Perras only saw that Drinski stumbled in his retreat either because he backed into something or simply tripped. 1991); Tom v. Voida, 963 F.2d 952, 961 (7th Cir. King, Koby, Cain and Trooper Lucien Mark Perras of the Indiana State Police responded, as did Deputy Sheriff Jeffrey Drinski. Circuit Rule 28(d); Branion v. Gramly, 855 F.2d 1256, 1260-61 (7th Cir. This is what we mean when we say we refuse to second-guess the officer. As he drove he heard a noise that suggested the rear door was opened. It is obvious that we said Voida thought she had no alternatives. Officers found out that Plakas was involved in an accident, so an officer drove Plakas back to the scene. Cited 201 times, 855 F.2d 1256 (1988) | 1977). She chased him and, when she caught him, he attacked her, banging her head into a concrete surface. 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 . Since Drinski did not violate Plakas's rights, there usually is no basis for holding his employer, Newton County, liable. Roy stayed outside to direct other police to his house. We refuse to impose as an additional constitutional requirement the firing of a warning shot before deadly force may be used." 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. King, listening from outside the clearing, thought Drinski might persuade Plakas to drop the weapon, but he did not. Koby frisked Plakas and then handcuffed him, with his hands behind his back. Konstantino Plakas was shot once and killed by Jeffrey Drinski, a deputy sheriff. Tom v. Voida is a classic example of this analysis. Drinski did most of the talking. Koby sought to reassure Plakas that he was not there to hurt him. 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. 1994) case opinion from the US Court of Appeals for the Seventh Circuit Inside the house, Plakas took the poker, slammed it into the wall [1] and then beat his head against the wall. 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. 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. They followed him out, now with guns drawn. Cain examined Plakas's head and found nothing that required medical treatment. H91-365. They followed him out, now with guns drawn. Illinois v. Lafayette, 462 U.S. 640, 647, 77 L. Ed. 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." Circuit court decisions further interpret U.S. Supreme Court decisions: 7th Circuit -Plakas v. Drinski (1994) -Decided that there is no Having driven Koby and Cain from the house, Plakas walked out of the front door. We believe the defendant misunderstands the holding in Plakas. The handcuffs were removed. He fell on his face inside the doorway, his hands still cuffed behind his back. Bankruptcy Lawyers; Business Lawyers . As he did so, Plakas slowly backed down a hill in the yard. Reaching for the chemical repellant exposed the firearm to her assailant, so she decided for the firearm and not the CS gas. Koby gestured for Cain to back up. Actually, the photograph is not included in the record here. Drinski believed he couldn't retreat because there was something behind him. 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 accused Koby of hurting him, and yelled about the handcuffing behind his back and about his scar tissue. Tom, 963 F.2d at 962. Plakas was calm until he saw Cain and Koby. The district court's grant of summary judgment is AFFIRMED. 251, 403 N.E.2d 821, 823, 825 (Ind. She decided she would have to pull her weapon so that he would not get it. Plakas V. Drinski. . See Martin L. Fackler, M.D., Police Handgun Ammunition Selection, WOUND BALLISTICS REVIEW, Fall 1992, at 32-37 (suggesting little effect beyond stopping movement). Cited 105 times, 774 F.2d 1495 (1985) | United States District Court, N.D. Indiana, Hammond Division. 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