. Plakas often repeated these thoughts. at 1276, n.8. The only witnesses to the shooting were three police officers, Drinski and two others. See Gilmere v. City of Atlanta, 774 F.2d 1495, 1501 (11th Cir. The Fourth Amendment does not require officers to use the least intrusive or even less intrusive alternatives in ordering search and seizure cases. 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. 2d 443, 109 S. Ct. 1865 (1989). 3. From this, Plakas argues a jury could infer that Officer Koby had beaten Plakas. Plakas was transported to the jail and Plakas escaped from the patrol car. He moaned and said, "I'm dying." 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. Plakas was turned on his back. Cain examined Plakas's head and found nothing that required medical treatment. 1994)). Also, in Carter v. Buscher, 973 F.2d 1328 (7th Cir. Plakas V. Drinski Ecology of Fear Emerging Infectious Diseases NCUA Examiner's Guide Local Budgeting Routledge Handbook on Capital Punishment Principles of Federal Appropriations Law Administration of Insured Home Mortgages Urban Economics and Fiscal Policy Handbook of School Mental Health Policy and Procedures Manual for Guidance of Federal . There is no showing that any footprints could be clearly discerned in the photograph. near:5 gun, "gun" occurs to either to Drinski did most of the talking. Drinski's retreat was involuntarily stopped, either by his backing into a tree or by a near stumble of some sort. 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 96 times, 973 F.2d 1328 (1992) | Finally he rushed at Koby and swung quite hard at Koby, striking Koby's wrist with the poker. 251, 403 N.E.2d 821, 823, 825 (1980); Montague v. State, 266 Ind. When paramedic Whitt arrived at the clearing, he found Plakas laying about a foot from the brush at one corner of the clearing. 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." 1994)).Fifth Circuit: See Thomas v. Baldwin, 595 Fed. According to a paramedic at the scene, Plakas appeared to be intoxicated. This inference, however, cannot reasonably be made. 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. Cited 12622 times, 103 S. Ct. 2605 (1983) | Filing 89. He fell on his face inside the doorway, his hands still cuffed behind his back. They followed him out, now with guns drawn. 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. 1977). The officers who confronted Plakas were not the officers who injured him and should be able to claim self-defense. See Perfetti v. First Nat'l Bank of Chicago, 950 F.2d 449, 456 (7th Cir. This is what we mean when we say we refuse to second-guess the officer. Then Plakas tried to break through the brush. Officers found out that Plakas was involved in an accident, so an officer drove Plakas back to the scene. Cited 1106 times, Perkovic v. Marine City Police Officer Heaslip, LUNA-DIAZ et al v. HACKENSACK POLICE DEPARTMENT et al, Romero v. Board of County Commissioners of, ESTATE OF RONALD SINGLETARY et al v. CITY OF PHILADELPHIA et al, Estate of Andre Alexander Gree v. City of Indianapolis, Estate of Jason Ike Pero, by Personal Representative Holly Gauthier v. County of Ashland et al, Matthew King v. Hendricks County Commissioner, Jensen, Tristan v. Budreau, Anthony et al, United States of America v. City of Albuquerque, Nelson v. Board of County Commissioners of the Bernalillo County et al, Bradley v. Rochester Police Department et al, KING v. HENDRICKS COUNTY COMMISSIONERS et al, Jonas v. Board of Commissioners of Luna County. Plakas ran to the Ailes home located on a private road north of State Road 10. 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. Author: Martin A. Schwartz ISBN: 1454823038 Format: PDF Release: 2013 Language: en View 1994), and Plakas v.Drinski, 19 F.3d 1143 (7th Cir. United States District Court, N.D. Indiana, Hammond Division. Plakas accused Koby of hurting him, and yelled about the handcuffing behind his back and about his scar tissue. Koby reported the escape and called for help. King, Koby, Cain and Trooper Lucien Mark Perras of the Indiana State Police responded, as did Deputy Sheriff Jeffrey Drinski. Plakas did agree to go to the Sheriff's Department to be tested for intoxication. Koby moved away and tried to come in the room from another door, but Plakas chased him away, swinging the poker. They noticed that his clothes were wet. We do not know whether there was any forensic investigation made at the scene. 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. Tom v. Voida did not, and did not mean to, announce a new doctrine. The officers told Plakas to drop the poker. See, e.g., John Barry & Tom Morganthau, Soon, 'Phasers on Stun', NEWSWEEK, Feb. 7, 1994, at 24-26. 1994); Martinez v. County of Los Angeles, 47 Cal. In Ford v. Childers, 855 F.2d 1271 (7th Cir. Cain saw Plakas push his legs through the circle of his arms, bringing his cuffed hands to the front of his body. Leaving aside the absence of evidence of facial injuries from medical records or post-mortem observation, we accept that Mrs. Ailes saw these injuries. Tom, 963 F.2d at 962. 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. 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 told them that he had wrecked his car and that his head hurt. 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. He fled but she caught him. Moreover, about ten minutes before the shooting, the services of a canine unit (from Lake County) were offered. No. 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. It is obvious that we said Voida thought she had no alternatives. . 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. Read this book using Google Play Books app on your PC, android, iOS devices. Koby frisked Plakas and then handcuffed him, with his hands behind his back. 1988). If Winnebago County had seen a rash of police killings of crazy people and it was well understood that these killings could have been avoided by the . He stopped, then lunged again; she fired into his chest. Other than random attacks, all such cases begin with the decision of a police officer to do something, to help, to arrest, to inquire. Joyce saw no blood, but saw bumps on his head and bruises. 1994) - ". King, listening from outside the clearing, thought Drinski might persuade Plakas to drop the weapon, but he did not. Plakas v. Drinski, 19 F.3d 1143, 1146 (7th Cir. Then the rear door flew open, and Plakas fled into snow-covered woods. She decided she would have to pull her weapon so that he would not get it. Abstract. Drinski blocked the opening in the brush where all had entered the clearing. 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. He swore Koby would not touch him. 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 refused medical treatment and signed a written waiver of treatment. 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." And, of course, judges are far more competent to say what equipment is needed to prepare a lawsuit than they are to say what equipment is best to defend one's self against an attack by a man with a poker, Likewise, we decline to impose a constitutional requirement to train the police to use all available equipment beyond the acceptable training program already mandated. 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. Get free summaries of new Seventh Circuit US Court of Appeals opinions delivered to your inbox! Since Drinski did not violate Plakas's rights, there usually is no basis for holding his employer, Newton County, liable. 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. 378, 382 (5th Cir. 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.". 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. King, Koby, Cain and Trooper Lucien Mark Perras of the Indiana State Police responded, as did Deputy Sheriff Jeffrey 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. 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." 1994). 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. 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. 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. Id. Reaching for the chemical repellant exposed the firearm to her assailant, so she decided for the firearm and not the CS gas. Plakas complained about being cuffed behind his back. Cain and Koby were the first to enter. 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. 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. The alternatives here were three. 1. the officers conduct violates a federal statutory or constitutional right. Cited 43 times, 855 F.2d 1271 (1988) | 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. Leaving aside the absence of evidence of facial injuries from medical records or post-mortem observation, we accept that Mrs. Ailes saw these injuries. This appeal followed. It is obvious that we said Voida thought she had no alternatives. 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. 5. Nor does he show how such a rule of liability could be applied with reasonable limits. 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"). Plakas agreed that Roy should talk to the police. He turned back to Drinski who was 12 to 15 feet away and, with the poker raised, charged at Drinski who backed away. right or left of "armed robbery. 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). There is no contention that this "invitation" immediately preceded the shooting or caused Plakas to charge Drinski. French v. State, 273 Ind. 1994). 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. Since Drinski did not violate Plakas's rights, there usually is no basis for holding his employer, Newton County, liable. From a house Plakas grabbed a fire poker and threaten the . Plakas died sometime after he arrived at the hospital. See Perfetti v. First Nat'l Bank of Chicago, 950 F.2d 449, 456 (7th Cir. Morton v. Kirkwood, 707 F.3d 1276, 1281 (11th Cir. 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. Even if there were no other witness, there is virtually nothing in this record to impeach Drinski. 1356. Drinski's retreat was involuntarily stopped, either by his backing into a tree or by a near stumble of some sort. See Reed v. Hoy, 909 F.2d 324, 330-31 (9th Cir. Cain examined Plakas's head and found nothing that required medical treatment. See also Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872, 104 L. Ed. She chased him and, when she caught him, he attacked her, banging her head into a concrete surface. Yet we rejected the proposition "that the Fourth Amendment prohibits creating unreasonably dangerous circumstances in which to effect a legal arrest of a suspect." Having driven Koby and Cain from the house, Plakas walked out of the front door. Drinski was in fear of his life, and Plakas's action was sudden and unexpected. Cain and some officers went to the house. She did not have her night stick. In 1991, Plakas drove his car off a State road into a ditch. This conclusion accords comfortably with the opinion of Judge Zagel in Plakas v. Drinski, 19 F.3d 1143, 1148-50 (7th Cir. They talked about the handcuffs and the chest scars. accident), Expand root word by any number of Again, he struck her. We said, " [T]he officers' split second decision to use their weapons, after twice warning the suspect, was objectively reasonable under the circumstances. Subscribe to Justia's Free Summaries of Eleventh Circuit opinions. Voida fired one shot at Tom which did not hit him, but he insisted on lunging at her again. My life isn't worth anything." At one point, Plakas lowered the poker but did not lay it down. If the officer had decided to do nothing, then no force would have been used. Plakas did agree to go to the Sheriff's Department to be tested for intoxication. Pratt, 999 F.2d 774 (4th Cir. Taken literally the argument fails because Drinski did use alternative methods. 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. They could have used disabling chemical spray, or they could have used a dog to disarm Plakas. Northern District. 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. Koby sought to reassure Plakas that he was not there to hurt him. * The Honorable James B. Zagel, District Judge of the United States District Court for the Northern District of Illinois, is sitting by designation. 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. Subscribe Now Justia Legal Resources. 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 may be state law rules which require retreat, but these do not impose constitutional duties. When Cain and Plakas arrived, the ambulance driver examined Plakas. Cited 2719 times, 856 F.2d 802 (1988) | 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. Dockets & Filings. Paul F. Michel (argued), Thomas McClure, Rosa A. Eliades, Elliott & McClure, Bourbonnais, IL, for Jo Ann PLAKAS. Plakas brings up a few bits of evidence to do so. Heres how to get more nuanced and relevant Through an opening in the brush was a clearing. See Reed v. Hoy, 909 F.2d 324, 330-31 (9th Cir. Taken literally the argument fails because Drinski did use alternative methods. Filing 920070312 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. Koby also thought that he would have a problem with Plakas if he uncuffed him. Id. 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. Inside the house, Plakas took the poker, slammed it into the wall [1] and then beat his head against the wall. 7. 1998); Plakas v. Drinski, supra, 19 F.3d at 1150 n. 6, but if so the failure to adopt those measures would not be more than negligence, which is not actionable under section 1983. . Finally, there is the argument most strongly urged by Plakas. Courts cannot second guess the split-second judgements of a police officer to use deadly force in . Sergeant King stood just outside it. When paramedic Whitt arrived at the clearing, he found Plakas laying about a foot from the brush at one corner of the clearing. He tried to avoid violence. Plakas v. Drinski (7th, 1994) in 1991 Plakas was walking. In affirming summary judgment for the officer, we said. Download for offline reading, highlight, bookmark or take notes while you read Plakas V. Drinski. There they noticed Plakas was intoxicated. He raised or cocked the poker but did not swing it. 1992). Plakas charged [the police officer] with the poker raised. 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. 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. An alternative plan could have reduced or eliminated the possibility of the arrestee's use of a gun. In this sense, the police officer always causes the trouble. The record before us leaves only room for speculation about some circumstances. 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. Joyce Ailes heard Dino banging against the house; she saw him and opened the door. 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. 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. 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. There is no contention that this "invitation" immediately preceded the shooting or caused Plakas to charge Drinski. Mailed notice(cdh, ) Download PDF . 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. You can explore additional available newsletters here. Perras took the poker. Cain stopped and spoke to Plakas who said he was fine except that he was cold. Before CUMMINGS and COFFEY, Circuit Judges, and ZAGEL, District Judge.*. This is not the kind of weighing of least deadly alternatives that Plakas would have us require of Drinski. City of Springfield, 957 F.2d 953, 959 (1st Cir.1992); cf. A volunteer fireman found him walking . 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. 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. Plakas V. Drinski. 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. See Gilmere v. City of Atlanta, 774 F.2d 1495, 1501 (11th Cir. 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. Our historical emphasis on the shortness of the legally relevant time period is not accidental. King, listening from outside the clearing, thought Drinski might persuade Plakas to drop the weapon, but he did not. Roy tried to talk Plakas into surrendering. Twice the police called out, "Halt, police," but the plaintiff may not have heard. Likewise, we decline to impose a constitutional requirement to train the police to use all available equipment beyond the acceptable training program already mandated. 1994), in which he states: . For the next quarter-hour or half-hour, Drinski and Perras tried to talk Plakas into surrendering. 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. , 47 Cal, 403 N.E.2d 821, 823, 825 ( 1980 ) cf! `` I 'm dying. v. Childers, 855 F.2d 1271 ( 7th Cir Department. Tom which did not mean to, announce a new doctrine uncuffed him on shortness. Front of his arms, bringing his cuffed hands to the shooting, ambulance. ( 1980 ) ; Montague v. State, 266 Ind lunged again ; she fired his. The rear door flew open, and Plakas arrived, the ambulance driver examined Plakas rights. 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