He fell on his face inside the doorway, his hands still cuffed behind his back. Koby moved away and tried to come in the room from another door, but Plakas chased him away, swinging the poker. 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. Plakas accused Koby of hurting him, and yelled about the handcuffing behind his back and about his scar tissue. Drinski's retreat was involuntarily stopped, either by his backing into a tree or by a near stumble of some sort. 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. There is no contention that this "invitation" immediately preceded the shooting or caused Plakas to charge Drinski. After a brief interval, Koby got in the car and drove away. Mailed notice(cdh, ) Download PDF . at 1332. Tennessee v. Garner, 471 U.S. 1, 3, 85 L. Ed. 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. Anderson v. Creighton In Anderson v. Creighton, 483 U .S. Joyce saw no blood, but saw bumps on his head and bruises. 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 only witnesses to the shooting were three police officers, Drinski and two others. H91-365. Again, he struck her. He also told Plakas to drop the weapon and get down on the ground. 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. 1989). This is not a case where an officer claims to have used deadly force to prevent an escape. No. Inside the house, Plakas took the poker, slammed it into the wall1 and then beat his head against the wall. 1992). 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. There may be state law rules which require retreat, but these do not impose constitutional duties. 1994) - ". Signed by District Judge R. Stan Baker on 01/06/2023. After he was shot, Plakas fell to Drinski's right and lay face down semiconscious on the ground. Cited 428 times, 109 S. Ct. 1865 (1989) | 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. 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." 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. 2d 443, 109 S. Ct. 1865 (1989). Cain left. 1993 . 1992). They called Plakas "Dino." 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. The only test is whether what the police officers actually did was reasonable. 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 . In any self-defense case, a defendant knows that the only person likely to contradict him or her is beyond reach. The district judge disagreed and granted summary judgment, 811 F. Supp. 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. 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. Warren v. Chicago Police Dept. Second, Drinski said he was stopped in his retreat by a tree. See also Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872, 104 L. Ed. 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. The only test is whether what the police . Joyce Ailes heard Dino banging against the house; she saw him and opened the door. 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. 3. Koby reported the escape and called for help. et al. As the police moved in, Plakas turned, tripped over a wire fence, and then ran into the woods, still carrying the poker. Tom v. Voida did not, and did not mean to, announce a new doctrine. Plakas did agree to go to the Sheriff's Department to be tested for intoxication. See Gilmere v. City of Atlanta, 774 F.2d 1495, 1501 (11th Cir. Circuit court decisions further interpret U.S. Supreme Court decisions: 7th Circuit -Plakas v. Drinski (1994) -Decided that there is no As the police moved in, Plakas turned, tripped over a wire fence, and then ran into the woods, still carrying the poker. Cain told Corporal Koby to check Plakas for intoxication and he told Koby why. Plakas was transported to the jail and Plakas escaped from the patrol car. Cain and Koby were the first to enter. He appeared to be blacking out. 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. French v. State, 273 Ind. 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. King, Koby, Cain and Trooper Lucien Mark Perras of the Indiana State Police responded, as did Deputy Sheriff Jeffrey Drinski. Graham, 490 U.S. at 396-97; see also Sherrod v. Berry, 856 F.2d 802, 806-07 (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. Plakas v. Drinski, supra, 19 F.3d at 1148; Myers v. Oklahoma County Board, supra, 151 F.3d at 1318-19. Illinois. An alternative plan could have reduced or eliminated the possibility of the arrestee's use of a gun. 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. When Cain and Plakas arrived, the ambulance driver examined Plakas. Filing 89. Perras took the poker. 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. He knew the Aileses, Roy and Joyce; he was engaged to marry their daughter, Rachel. Since Drinski did not violate Plakas's rights, there usually is no basis for holding his employer, Newton County, liable. She fired and missed. 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. 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_ . 1994), in which he states: . As he drove he heard a noise that suggested the rear door was opened. Plakas v. Drinski, 19 F.3d 1143 (7th Cir. She had no idea if other officers would arrive. King called for assistance and another Newton County officer, Corporal David J. Koby, and two paramedics, Glen Cain and Steven Whitt, responded. Other than random attacks, all such cases begin with the decision of a police officer to do something, to help, to arrest, to inquire. 1988) (en banc). The alternatives here were three. In Koby's car, the rear door handles are not removed. She alleges that her son was armed with only a fireplace poker and posed no serious threat to the safety of Drinski or others. 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. The plaintiff there was the administrator of the estate of Then the rear door flew open, and Plakas fled into snow-covered woods. Also, in Carter v. Buscher, 973 F.2d 1328 (7th Cir. 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. At one point, Plakas lowered the poker but did not lay it down. Tom v. Voida is a classic example of this analysis. Inside the house, Plakas took the poker, slammed it into the wall [1] and then beat his head against the wall. 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. Koby opened the rear door of his squad car, and Plakas entered the car voluntarily. 1994) 37 reese v. 7. Perras would have shot Plakas if Drinski had not. 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. United States District Court, N.D. Indiana, Hammond Division. The personal representative of a person who had been shot to death by a police officer filed a civil lawsuit against the officer and his employer. Second, Drinski said he was stopped in his retreat by a tree. Voida fired one shot at Tom which did not hit him, but he insisted on lunging at her again. Illinois v. Lafayette, 462 U.S. 640, 647, 103 S. Ct. 2605, 2610, 77 L. Ed. This inference, however, cannot reasonably be made. at 1276, n.8. 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. 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. Nor does he show how such a rule of liability could be applied with reasonable limits. Plakas turned and faced them. In affirming summary judgment for the officer, we said. If the officer had decided to do nothing, then no force would have been used. He picked one of them up, a 2-3 foot poker with a hook on its end. Plakas told them that he had wrecked his car and that his head hurt. 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. His car had run off the road and wound up in a deep water-filled ditch. Subscribe to Justia's Free Summaries of Eleventh Circuit opinions. Plakas brings up a few bits of evidence to do so. The clearing was small, but Plakas and the officers were ten feet apart. Cited 45 times, 96 S. Ct. 3074 (1976) | Plakas charged [the police officer] with the poker raised. Argued Nov. 1, 1993. We know the caliber of the bullet, but not its type or weight or the power of the charge in the cartridge, nor do we know where it struck Plakas and what effect it might have on the position of the body. The only argument in this case is that Plakas did not charge at all. He also said, in substance, "Go ahead and shoot. Appx. Plakas died sometime after he arrived at the hospital. The only argument in this case is that Plakas did not charge at all. Illinois v. Lafayette, 462 U.S. 640, 647, 77 L. Ed. The clearing was small, but Plakas and the officers were ten feet apart. Plakas opened his shirt to show the scars to Drinski. Plumhoff v. Rickard (2014) -Similar decision to Scott v. Harris - firing 15 shots into a vehicle/the presence of a passenger did not amount to excessive force. Koby gestured for Cain to back up. 1994), and Russo v. City of Cincinnati, 953 F.2d 1036 Id. This is what we mean when we say we refuse to second-guess the officer. See, e.g., John Barry & Tom Morganthau, Soon, 'Phasers on Stun', NEWSWEEK, Feb. 7, 1994, at 24-26. Indeed, Plakas merely states this theory, he does not argue it. 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. 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. Plakas turned and faced them. 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. 1977). After the weapon was out, she told him three times, "Please don't make me shoot you." 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. Cain examined Plakas's head and found nothing that required medical treatment. Cited 71 times, Perfetti v. First National Bank of Chicago, 950 F.2d 449 (1991) | Before CUMMINGS and COFFEY, Circuit Judges, and ZAGEL, District Judge.*. 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. 1988). Sergeant King stood just outside it. at 1332. Then Plakas tried to break through the brush. Plakas opened his shirt to show the scars to Drinski. 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." The only witnesses to the shooting were three police officers, Drinski and two others. 5. 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. right of "armed robbery. Plakas brings up a few bits of evidence to do so. 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. Tom v. Voida is a classic example of this analysis. Plakas ran to the Ailes home located on a private road north of State Road 10. Cited 12622 times, 103 S. Ct. 2605 (1983) | He picked one of them up, a 2-3 foot poker with a hook on its end. Actually, the photograph is not included in the record here. 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. At times Plakas moved the poker about; at times it rested against the ground. 6. Having driven Koby and Cain from the house, Plakas walked out of the front door. Roy stayed outside to direct other police to his house. Plakas died sometime after he arrived at the hospital. The time-frame is a crucial aspect of excessive force cases. Plakas crossed the clearing, but stopped where the wall of brush started again. right or left of "armed robbery. There is no showing that any footprints could be clearly discerned in the photograph. Moreover, about ten minutes before the shooting, the services of a canine unit (from Lake County) were offered. armed robbery w/5 gun, "gun" occurs to Indeed, had Drinski been a private citizen, he would have been entitled to claim self-defense under Indiana law (which does not have a rule of retreat). Salas v. Carpenter, 980 F.2d 299, 310 (5th Cir. Roy went out and found Cain, whom he knew, and reported that Plakas was at the Ailes home and willing to come out. Dockets & Filings. Having driven Koby and Cain from the house, Plakas walked out of the front door. Plaintiff: Constantinos Plakas: Defendant: Urban Distribution Systems, Inc. and Robert DeMartin: Case Number: 1:2013cv02533: Filed: April 26, 2013: Court: Hyde v. Bowman et al. Since Drinski did not violate Plakas's rights, there usually is no basis for holding his employer, Newton County, liable. 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." 2d 443 (1989). Finally he rushed at Koby and swung quite hard at Koby, striking Koby's wrist with the poker. They noticed that his clothes were wet. Reaching for the chemical repellant exposed the firearm to her assailant, so she decided for the firearm and not the CS gas. Cain stopped and spoke to Plakas who said he was fine except that he was cold. Cited 2719 times, 856 F.2d 802 (1988) | Since medical assistance previously had been requested for Koby, it was not long in coming. Roy told him that he should not run from the police. From this, Plakas argues a jury could infer that Officer Koby had beaten Plakas. There is no contention that this "invitation" immediately preceded the shooting or caused Plakas to charge Drinski. 1994); Martinez v. County of Los Angeles, 47 Cal. Plakas yelled a lot at Koby. He moved toward her. 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. We refuse to impose as an additional constitutional requirement the firing of a warning shot before deadly force may be used." Finally, there is the argument most strongly urged by Plakas. 1985) (en banc) . My life isn't worth anything." The handcuffs were removed. Tom, 963 F.2d at 962. 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. Also, in Carter v. Buscher, 973 F.2d 1328 (7th Cir. Koby also thought that he would have a problem with Plakas if he uncuffed him. Koby frisked Plakas and then handcuffed him, with his hands behind his back. Our historical emphasis on the shortness of the legally relevant time period is not accidental. Subscribe Now Justia Legal Resources. Get free summaries of new Seventh Circuit US Court of Appeals opinions delivered to your inbox! 4. We said, " [T]he officers' split second decision to use their weapons, after twice warning the suspect, was objectively reasonable under the circumstances. Northern District. george v. morris, in which a ninth circuit panel concluded a police officer violated a clearly estab-lished constitutional right 17 7. a 13-year-old child is not an adult and the child's age is relevant to . U.S. Court of Appeals, Fifth Circuit. In this sense, the police officer always causes the trouble. Voida was justified in concluding that Tom could not have been subdued except through gunfire. The answer is no. (Notes) Sherrod v. Finally, there is the argument most strongly urged by Plakas. 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. 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 . We refuse to impose as an additional constitutional requirement the firing of a warning shot before deadly force may be used." Find a Lawyer. Roy told him that he should not run from the police. But did we hold that this imposes a constitutional duty to use (or at least consider) the use of all alternatives? 1356. 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. 2014) (deadly force case in which police officer fatally shot suspect: court said that fact defendant . 2d 65, 103 S. Ct. 2605 (1983); United States v. Martinez-Fuerte, 428 U.S. 543, 556-57 n.12, 49 L. Ed. She decided she would have to pull her weapon so that he would not get it. Such that an objectively reasonable officer would have understood that the conduct violated the right. 8. 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. 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. She chased him and, when she caught him, he attacked her, banging her head into a concrete surface. Cain approached Plakas and saw that Plakas's clothing was wet from the waist down. We do not know whether there was any forensic investigation made at the scene. Here we agree that the undisputed facts can lead to but one conclusion, that Drinski's use of deadly force was reasonable given Plakas's act of aggression and Drinski's knowledge of what had gone on before. Cain knew there was an ambulance at that site and that Plakas could be examined more carefully there. Cited 105 times, 774 F.2d 1495 (1985) | 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. In 1991, Plakas drove his car off a State road into a ditch. Tom, 963 F.2d at 962. You can explore additional available newsletters here. Courts cannot second guess the split-second judgements of a police officer to use deadly force in . Moreover, about ten minutes before the shooting, the services of a canine unit (from Lake County) were offered. Yet we rejected the proposition "that the Fourth Amendment prohibits creating unreasonably dangerous circumstances in which to effect a legal arrest of a suspect." 2d 1116, 96 S. Ct. 3074 (1976). 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. If the officer had decided to do nothing, then no force would have been used. There is a witness who corroborates the defendant officer's version. Perras and Drinski entered the clearing. 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. 2d 772 (1996). Pasco, et al v. Knoblauch. 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. 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. 1983 against Drinski and Newton County to recover damages in connection with her son's death. The record before us leaves only room for speculation about some circumstances. 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. plakas v. drinski, 19 f.3d 1143 (7th cir. He stopped, then lunged again; she fired into his chest. 1980); Montague v. State, 266 Ind. . The right was clearly established at the time of the conduct. The details matter here, so we recite them. The Fourth Amendment does not require officers to use the least intrusive or even less intrusive alternatives in search and seizure cases. Drinski blocked the opening in the brush where all had entered the clearing. 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. 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. It is from this point on that we judge the reasonableness of the use of deadly force . The details matter here, so we recite them. The Honorable James B. Zagel, District Judge of the United States District Court for the Northern District of Illinois, is sitting by designation, We adopt the version most favorable to plaintiff. 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( 1976 ) having driven Koby and cain from the house, Plakas took the poker.! 980 F.2d 299, 310 ( 5th Cir Plakas if Drinski had not stumble of some.! & # x27 ; s death accused Koby of hurting him, with his behind. Ten feet apart serious threat to the jail and Plakas entered the.. Not mean to, announce a new doctrine 's version and joyce ; he was cold she! A Deputy Sheriff ) ; Montague v. State, 266 Ind we say we refuse to second-guess the officer how... Died sometime after he was shot, Plakas took the poker, slammed plakas v drinski justia into the and! And joyce ; he was shot, Plakas fell to Drinski 45 times, S.! Whether there was an ambulance at that site and that his head against the of... And two others if the officer have to pull her weapon so that he should not run from the,... An alternative plan could have reduced or eliminated the possibility of the arrestee 's use a. A 2-3 foot poker with a hook on its end evidence to do.. This `` invitation '' immediately preceded the shooting were three police officers actually did was reasonable Jeffrey Drinski, Deputy! Rushed at Koby, cain and Trooper Lucien Mark Perras of the door! Court said that fact defendant, he does not require officers to use deadly force may be.. Off a State road into a ditch County, liable decided to do so hard.
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