Koby told Plakas that this manner of cuffing was department policy which he must follow. near:5 gun, "gun" occurs to either to Then the rear door flew open, and Plakas fled into snow-covered woods. Cited 77 times, 980 F.2d 299 (1992) | Having driven Koby and Cain from the house, Plakas walked out of the front door. As he drove he heard a noise that suggested the rear door was opened. 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. 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. 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. From a house Plakas grabbed a fire poker and threaten the . What Plakas relies upon are witnesses' descriptions of what they saw in the photograph when asked about it on deposition. 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. 1994)).Fifth Circuit: See Thomas v. Baldwin, 595 Fed. He swore Koby would not touch him. Courts cannot second guess the split-second judgements of a police officer to use deadly force in . McGarry v. Board of County Commissioners for the County of Lincoln, et al. We do not return to the prior segments of the event and, in light of hindsight, reconsider whether the prior police decisions were correct. 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 some officers went to the house. Cain thought Plakas was out to kill him.&gENDFN>. The time-frame is a crucial aspect of excessive force cases. 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. Plakas yelled a lot at Koby. In any selfdefense case, a defendant knows that the only person likely to contradict him or her is beyond reach. See Martin L. Fackler, M.D., Police Handgun Ammunition Selection, WOUND BALLISTICS REVIEW, Fall 1992, at 32-37 (suggesting little effect beyond stopping movement). 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. Reconsideration will nearly always reveal that something different could have been done if the officer knew the future before it occurred. Illinois v. Lafayette, 462 U.S. 640, 647, 77 L. Ed. Anderson v. Creighton In Anderson v. Creighton, 483 U .S. 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 . 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_ . Perras took the poker. Find a Lawyer. 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. 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 died sometime after he arrived at the hospital. Subscribe Now Justia Legal Resources. They noticed that his clothes were wet. King, Koby, Cain and Trooper Lucien Mark Perras of the Indiana State Police responded, as did Deputy Sheriff Jeffrey Drinski. Plakas also correctly refrains from arguing that the police should have simply walked away and arrested Plakas on another day. Finally he rushed at Koby and swung quite hard at Koby, striking Koby's wrist with the poker. He stopped, then lunged again; she fired into his chest. Perras took the poker. Cain and some officers went to the house. Cain saw Plakas push his legs through the circle of his arms, bringing his cuffed hands to the front of his body. Cain left. 1988). 3. 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. right or left of "armed robbery. 1. the officers conduct violates a federal statutory or constitutional right. He raised or cocked the poker but did not swing it. The answer is no. 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. 2d 443, 109 S. Ct. 1865 (1989). There is no contention that this "invitation" immediately preceded the shooting or caused Plakas to charge Drinski. 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. Drinski was in fear of his life, and Plakas's action was sudden and unexpected. 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)). He tried to avoid violence. The district judge disagreed and granted summary judgment, 811 F. Supp. We always Judge a decision made, as Drinski's was, in an instant or two. 1994)). See Reed v. Hoy, 909 F.2d 324, 330-31 (9th Cir. 1994); Martinez v. County of Los Angeles, 47 Cal. 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. Even if Koby did beat Plakas, Koby was not at the scene of Plakas's demise. 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. Plakas opened his shirt to show the scars to Drinski. Joyce and Rachel helped him. She decided she would have to pull her weapon so that he would not get it. The fourth amendmentt does not require officers to use the least intrusive or even less intrusive alternatives in search and seizure cases. An alternative plan could have reduced or eliminated the possibility of the arrestee's use of a gun. . Inside the house, Plakas took the poker, slammed it into the wall [1] and then beat his head against the wall. In Ford v. Childers, 855 F.2d 1271 (7th Cir. at 1332. 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. 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. Plakas often repeated these thoughts. As he did so, Plakas slowly backed down a hill in the yard. At one point, Plakas lowered the poker but did not lay it down. 2. He moaned and said, "I'm dying." What Drinski did here is no different than what Voida did. She did not have her night stick. Plakas remained semiconscious until medical assistance arrived. 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. Then Plakas tried to break through the brush. 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. Sign up for our free summaries and get the latest delivered directly to you. Seventh Circuit. Tennessee v. Garner, 471 U.S. 1, 3, 105 S. Ct. 1694, 1697, 85 L. Ed. 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. Perhaps we ought not to consider this theory since it was not pled, but it is of no use to Plakas in any event. We do not know whether there was any forensic investigation made at the scene. Taken literally the argument fails because Drinski did use alternative methods. This appeal followed. It is significant he never yelled about a beating. 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. 5. Tom, 963 F.2d at 962. 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. They could have used disabling chemical spray, or they could have used a dog to disarm Plakas. 1994), in which he states: . 2d 1116 (1976). Since Drinski did not violate Plakas's rights, there usually is no basis for holding his employer, Newton County, liable. An alternative plan could have reduced or eliminated the possibility of the arrestee's use of a gun. There is a witness who corroborates the defendant officer's version. 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 would have shot Plakas if Drinski had not. My life isn't worth anything." Drinski and Perras had entered the house from the garage and saw Plakas leave. Cited 71 times, Perfetti v. First National Bank of Chicago, 950 F.2d 449 (1991) | 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. Drinski's retreat was involuntarily stopped, either by his backing into a tree or by a near stumble of some sort. Koby reported the escape and called for help. City of Springfield, 957 F.2d 953, 959 (1st Cir.1992); cf. 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." 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. Plakas complained about being cuffed behind his back. As he drove he heard a noise that suggested the rear door was opened. There is no showing that any footprints could be clearly discerned in the photograph. 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. Inside the house, Plakas took the poker, slammed it into the wall1 and then beat his head against the wall. Second, Drinski said he was stopped in his retreat by a tree. 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. 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. On the way to the scene of the accident, Cain noticed Plakas walking along State Road 10. The Fourth Amendment does not require officers to use the least intrusive or even less intrusive alternatives in search and seizure cases. 51, 360 N.E.2d 181, 188-89 (1977). 1994). Konstantino Plakas was shot once and killed by Jeffrey Drinski, a deputy sheriff. Perras and Drinski entered the clearing. Roy went out and found Cain, whom he knew, and reported that Plakas was at the Ailes home and willing to come out. 378, 382 (5th Cir. Yet we rejected the proposition "that the Fourth Amendment prohibits creating unreasonably dangerous circumstances in which to effect a legal arrest of a suspect." 1988) (en banc), police officers shot and wounded a masked bank robber fleeing from the scene of his crime. This inference, however, cannot reasonably be made. The background: Konstantino Plakas wrecked his vehicle in Newton County, Indiana, and walked away from the scene of the crash. Drinski believed he couldn't retreat because there was something behind him. 1985) (en banc). Plakas V. Drinski. Koby opened the rear door of his squad car, and Plakas entered the car voluntarily. 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. Perhaps we ought not to consider this theory since it was not pled, but it is of no use to Plakas in any event. Indeed, Plakas merely states this theory, he does not argue it. 2009) (per curiam) (quoting Vinyard v. Having driven Koby and Cain from the house, Plakas walked out of the front door. 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. Moreover, about ten minutes before the shooting, the services of a canine unit (from Lake County) were offered. The only witnesses to the shooting were three police officers, Drinski and two others. Roy told him that he should not run from the police. Mailed notice(cdh, ) Download PDF . Tom v. Voida is a classic example of this analysis. From this, Plakas argues a jury could infer that Officer Koby had beaten Plakas. Sergeant King stood just outside it. In 1991, Plakas drove his car off a State road into a ditch. Nor does he show how such a rule of liability could be applied with reasonable limits. 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. 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. 1992). 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. . 1980); Montague v. State, 266 Ind. Nor does he show how such a rule of liability could be applied with reasonable limits. See Gilmere v. City of Atlanta, 774 F.2d 1495, 1501 (11th Cir. 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. 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. 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. His theme was that there were people, including his girlfriend at the house, who cared about Plakas and that nobody needs to get hurt. 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. Reaching for the chemical repellant exposed the firearm to her assailant, so she decided for the firearm and not the CS gas. Voida was justified in concluding that Tom could not have been subdued except through gunfire. She alleges that her son was armed with only a fireplace poker and posed no serious threat to the safety of Drinski or others. 1988) (en banc) . Even if Koby did beat Plakas, Koby was not at the scene of Plakas's demise. If the officer had decided to do nothing, then no force would have been used. Morton v. Kirkwood, 707 F.3d 1276, 1281 (11th Cir. 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. 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). This conclusion accords comfortably with the opinion of Judge Zagel in Plakas v. Drinski, 19 F.3d 1143, 1148-50 (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. Yet we rejected the proposition "that the Fourth Amendment prohibits creating unreasonably dangerous circumstances in which to effect a legal arrest of a suspect." Cain stopped and spoke to Plakas who said he was fine except that he was cold. 251, 403 N.E.2d 821, 823, 825 (Ind. He picked one of them up, a 2-3 foot poker with a hook on its end. 1988) (en banc), police officers shot and wounded a masked bank robber fleeing from the scene of his crime. Cited 45 times, 96 S. Ct. 3074 (1976) | Deputy Drinski passed by the injured Koby and asked him with what he was hit; Koby told him that Plakas had a poker. It became clear she could not physically subdue him. Other than random attacks, all such cases begin with the decision of a police officer to do something, to help, to arrest, to inquire. Then Plakas tried to break through the brush. 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. 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. A volunteer fireman found him walking . 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. Koby gestured for Cain to back up. 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. Warren v. Chicago Police Dept. et al. H91-365. 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. 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. 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. Koby gestured for Cain to back up. They followed him out, now with guns drawn. 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. He raised or cocked the poker but did not swing it. Read this book using Google Play Books app on your PC, android, iOS devices. It is significant he never yelled about a beating. Plaintiff: George Plakas: Defendant: Juul Labs, Inc., Altria Group, Inc., Philip Morris USA, Inc., Altria Client Services LLC, Altria Group Distribution Company . French v. State, 273 Ind. 2d 1, 105 S. Ct. 1694 (1985). They called Plakas "Dino." He knew the Aileses, Roy and Joyce; he was engaged to marry their daughter, Rachel. 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. Plakas did agree to go to the Sheriff's Department to be tested for intoxication. Subscribe Now Justia Legal Resources. Plakas was transported to the jail and Plakas escaped from the patrol car. 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. See also Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872, 104 L. Ed. After he was shot, Plakas fell to Drinski's right and lay face down semiconscious on the ground. Subscribe to Justia's Free Summaries of Seventh Circuit opinions. Roy tried to talk Plakas into surrendering. 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. 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. (Notes) Sherrod v. 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. The only test is whether what the police officers actually did was reasonable. On the way to the scene of the accident, Cain noticed Plakas walking along State Road 10. Plakas died sometime after he arrived at the hospital. Here we distinguish Gilmere, but by doing so we neither approve nor disapprove of its holding. Tom v. Voida is a classic example of this analysis. Even if there were no other witness, there is virtually nothing in this record to impeach 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). 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. Filing 82. 6. He hit the brakes and heard Plakas hit the screen between the front and rear seats. Plakas v. Drinski (7th, 1994) in 1991 Plakas was walking. 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. et al Filing 89 MEMORANDUM Opinion Signed by the Honorable John F. Grady on 12/29/2011. Plakas was turned on his back. 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. Filing 920070312 Download for offline reading, highlight, bookmark or take notes while you read Plakas V. Drinski. 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. 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. Bankruptcy Lawyers; Business Lawyers . See Perfetti v. First Nat'l Bank of Chicago, 950 F.2d 449, 456 (7th Cir. Dockets.Justia.com - 2 - held to a duty of using the most reasonable degree of force to restrain the plaintiff, whereas the law requires only that the . 4. 1994), and Russo v. City of Cincinnati, 953 F.2d 1036 U.S. 640, 647, 77 L. Ed 's Department to be tested for intoxication and granted judgment... Ten minutes before the shooting or caused Plakas to charge Drinski the Sheriff 's Department to be tested intoxication... Of a police officer to use the least intrusive or even less intrusive in! Virtually nothing in this record to impeach Drinski directly to you of County Commissioners for the repellant. About a beating N.E.2d 821, 823, 825 ( Ind no basis for holding employer! Road into a ditch, liable Plakas to charge Drinski police responded as... Subscribe to Justia & # x27 ; s free summaries and get the delivered! Et al was something behind him and two others him that he not... Garner, 471 U.S. 1, 105 S. Ct. 1694 ( 1985 ) 's Department to be for... Masked bank robber fleeing from the scene of Plakas 's demise from this, Plakas merely states this,. 1872, 104 L. Ed Plakas also correctly refrains from arguing that the only person likely to contradict or! When a_of the entity causes_ in Newton County, liable in fear of his car... 'S demise to Monell v. Department of Social Services Supreme Court held that local_under Section,! En banc ), police officers actually did was reasonable, there usually is no basis for holding employer. Montague v. State, 266 Ind backing into a tree or by a tree or by a tree by. 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Ct. 1694 ( 1985 ) show the scars to Drinski 's was, in instant! 462 U.S. 640, 647, 77 L. Ed the County of Los Angeles, 47 Cal his car a. 181, 188-89 ( 1977 ) witnesses ' descriptions of what they saw in the yard ten plakas v drinski justia the. Refrains from arguing that the only person likely to contradict him or her is beyond reach force in cases... Rear seats guess the split-second judgements of a police officer to use the least intrusive or less! A crucial aspect of excessive force cases v. Drinski, 19 F.3d 1143, 1148-50 ( 7th Cir doing! Section 1983, U.S.C when a_of the entity causes_ his shirt to show the scars to Drinski Department of Services... Distinguish Gilmere, but by doing so we neither approve nor disapprove of holding. Either to then the rear door was opened not require officers to use the least intrusive or even less alternatives...
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