Here we distinguish Gilmere, but by doing so we neither approve nor disapprove of its holding. Paul F. Michel (argued), Thomas McClure, Rosa A. Eliades, Elliott & McClure, Bourbonnais, IL, for Jo Ann PLAKAS. 1994). Cain told Corporal Koby to check Plakas for intoxication and he told Koby why. 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. In this sense, the police officer always causes the trouble. 8. See Reed v. Hoy, 909 F.2d 324, 330-31 (9th Cir. 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. 1. Perhaps we ought not to consider this theory since it was not pled, but it is of no use to Plakas in any event. 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. Tom v. Voida did not, and did not mean to, announce a new doctrine. From a house Plakas grabbed a fire poker and threaten the . Oklahoma County Board, 151 F.3d 1313, 1320 (10th Cir. She did not have her night stick. 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? The police could have tried to put barriers between themselves and Plakas and maintain distance from him. 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 . Drinski and Perras had entered the house from the garage and saw Plakas leave. Koby sought to reassure Plakas that he was not there to hurt him. Perras would have shot Plakas if Drinski had not. 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). 34-1-14-6 (West 1983), bars Drinski and fellow officers, Buddy King, David Koby, and other deputies, officers, and employees of Newton County, Indiana from testifying to any statements or occurrences which took place . 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. 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. Drinski believed he couldn't retreat because there was something behind him. Bankruptcy Lawyers; Business Lawyers . 1992). See Gilmere v. City of Atlanta, 774 F.2d 1495, 1501 (11th Cir. The only witnesses to the shooting were three police officers, Drinski and two others. This appeal followed. . Such that an objectively reasonable officer would have understood that the conduct violated the right. When paramedic Whitt arrived at the clearing, he found Plakas laying about a foot from the brush at one corner of the clearing. Second, Drinski said he was stopped in his retreat by a tree. There is no contention that this "invitation" immediately preceded the shooting or caused Plakas to charge Drinski. Mailed notice(cdh, ) Download PDF . My life isn't worth anything." Court found deputy sheriff's split-second decision to use deadly force to protect himself was objectively reasonable even though suspect was handcuffed where subject was armed with fireplace poker and had already assaulted one officer with the poker. According to a paramedic at the scene, Plakas appeared to be intoxicated. The district Judge disagreed and granted summary judgment. ZAGEL, District Judge. 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." 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. In her response to Drinski's Motion for Summary Judgment, Plaintiff argues that the Indiana Dead Man's Statute, Ind. See Martin L. Fackler, M.D., Police Handgun Ammunition Selection, WOUND BALLISTICS REVIEW, Fall 1992, at 32-37 (suggesting little effect beyond stopping movement). Illinois v. Lafayette, 462 U.S. 640, 647, 77 L. Ed. 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. 1991); Tom v. Voida, 963 F.2d 952, 961 (7th Cir. 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). He raised or cocked the poker but did not swing it. Plakas accused Koby of hurting him, and yelled about the handcuffing behind his back and about his scar tissue. The officers who confronted Plakas were not the officers who injured him and should be able to claim self-defense. 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. defendant cites Plakas v. Drinski, 19 F.3d 1143, 1148 (7th Cir. We do not know whether there was any forensic investigation made at the scene. He can claim self-defense to shooting Plakas. 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. 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. They followed him out, now with guns drawn. Cain approached Plakas and saw that Plakas's clothing was wet from the waist down. The record before us leaves only room for speculation about some circumstances. United States Court of Appeals, Seventh Circuit. At times Plakas moved the poker about; at times it rested against the ground. She decided she would have to pull her weapon so that he would not get it. 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. 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. He also said, in substance, "Go ahead and shoot. In Koby's car, the rear door handles are not removed. An alternative plan could have reduced or eliminated the possibility of the arrestee's use of a gun. He fled but she caught him. 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." We refuse to impose as an additional constitutional requirement the firing of a warning shot before deadly force may be used." He fled but she caught him. Joyce saw no blood, but saw bumps on his head and bruises. et al Filing 89 MEMORANDUM Opinion Signed by the Honorable John F. Grady on 12/29/2011. 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. Before CUMMINGS and COFFEY, Circuit Judges, and ZAGEL, District Judge.*. He moaned and said, "I'm dying." right of "armed robbery. Konstantino Plakas was shot once and killed by Jeffrey Drinski, a deputy sheriff. Circuit Rule 28(d); Branion v. Gramly, 855 F.2d 1256, 1260-61 (7th Cir. 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. Roy stayed outside to direct other police to his house. 2d 65 (1983); United States v. Martinez-Fuerte, 428 U.S. 543, 556-57 n. 12, 96 S. Ct. 3074, 3082 n. 12, 49 L. Ed. 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." He also told Plakas to drop the weapon and get down on the ground. 7. ", Bidirectional search: in armed robbery 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. Id. Koby also thought that he would have a problem with Plakas if he uncuffed him. Roy went out and found Cain, whom he knew, and reported that Plakas was at the Ailes home and willing to come out. The police gave chase, shouting, "Stop, Police." Voida fired one shot at Tom which did not hit him, but he insisted on lunging at her again. Plakas crossed the clearing, but stopped where the wall of brush started again. 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. 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 . Voida was justified in concluding that Tom could not have been subdued except through gunfire. Plakas remained semiconscious until medical assistance arrived. A volunteer fireman found him walking . Plakas' mother, the Administratrix of his estate, has filed suit under 42 U.S.C. Cited 43 times, 855 F.2d 1271 (1988) | He hit the brakes and heard Plakas hit the screen between the front and rear seats. 5. Plakas v. Drinski, 19 F.3d 1143, 1146 (7th Cir. 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 agreed that Roy should talk to the police. Northern District. Download for offline reading, highlight, bookmark or take notes while you read Plakas V. Drinski. Finally, there is the argument most strongly urged by Plakas. Cain knew there was an ambulance at that site and that Plakas could be examined more carefully there. 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. Perras and Drinski entered the clearing. The only test is whether what the police officers actually did was reasonable. She did not have her night stick. 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. . Plakas yelled a lot at Koby. 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. Since medical assistance previously had been requested for Koby, it was not long in coming. In 1991, Plakas drove his car off a State road into a ditch. 1988) (en banc). Plakas told them that he had wrecked his car and that his head hurt. Plakas often repeated these thoughts. 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. In this sense, the police officer always causes the trouble. There they noticed Plakas was intoxicated. The time-frame is a crucial aspect of excessive force cases. After a brief interval, Koby got in the car and drove away. The district court's grant of summary judgment is AFFIRMED. The police could have tried to put barriers between themselves and Plakas and maintain distance from 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. He picked one of them up, a 2-3 foot poker with a hook on its end. Perras took the poker. 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. 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. We said, "The officers' split second decision to use their weapons, after twice warning the suspect, was objectively reasonable under the circumstances. Cited 105 times, 774 F.2d 1495 (1985) | Toggle navigation . 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. 1994); Martinez v. County of Los Angeles, 47 Cal. 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. Perras and Drinski entered the clearing. Salas v. Carpenter, 980 F.2d 299, 310 (5th Cir. Id. 2d 1116 (1976). 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. Plakas refused medical treatment and signed a written waiver of treatment. 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. 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. In affirming summary judgment for the officer, we said. Drinski blocked the opening in the brush where all had entered the clearing. 1994) 37 reese v. Moreover, about ten minutes before the shooting, the services of a canine unit (from Lake County) were offered. See, e.g., John Barry & Tom Morganthau, Soon, 'Phasers on Stun', NEWSWEEK, Feb. 7, 1994, at 24-26. He picked one of them up, a 2-3 foot poker with a hook on its end. 1994), and Russo v. City of Cincinnati, 953 F.2d 1036 He fell on his face inside the doorway, his hands still cuffed behind his back. He tried to avoid violence. Plakas often repeated these thoughts. 2d 1116, 96 S. Ct. 3074 (1976). She fired and missed. search results: Unidirectional search, left to right: in 1. the officers conduct violates a federal statutory or constitutional right. 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. Plakas was calm until he saw Cain and Koby. * The Honorable James B. Zagel, District Judge of the United States District Court for the Northern District of Illinois, is sitting by designation. 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. 2d 1, 105 S. Ct. 1694 (1985). Plakas was calm until he saw Cain and Koby. Officers found out that Plakas was involved in an accident, so an officer drove Plakas back to the scene. King, listening from outside the clearing, thought Drinski might persuade Plakas to drop the weapon, but he did not. Voida fired one shot at Tom which did not hit him, but he insisted on lunging at her again. Twice the police called out, "Halt, police," but the plaintiff may not have heard. On the way to the scene of the accident, Cain noticed Plakas walking along State Road 10. 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. The only test is whether what the police . 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. Other than random attacks, all such cases begin with the decision of a police officer to do something, to help, to arrest, to inquire. Cain and Koby were the first to enter. Finally he rushed at Koby and swung quite hard at Koby, striking Koby's wrist with the poker. Plakas accused Koby of hurting him, and yelled about the handcuffing behind his back and about his scar tissue. Cited 77 times, 980 F.2d 299 (1992) | Joyce Ailes heard Dino banging against the house; she saw him and opened the door. Id. Plakas yelled a lot at Koby. 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. But Plakas does have at least one opinion on which he may build his argument, that is, Tom v. Voida, 963 F.2d 952 (7th Cir. When Cain and Plakas arrived, the ambulance driver examined Plakas. Plakas complained about being cuffed behind his back. It became clear she could not physically subdue 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 v. Drinski (7th, 1994) in 1991 Plakas was walking. The Fourth Amendment does not require officers to use the least intrusive or even less intrusive alternatives in ordering search and seizure cases. Moreover, about ten minutes before the shooting, the services of a canine unit (from Lake County) were offered. 1993 . They could have used disabling chemical spray, or they could have used a dog to disarm Plakas. There may be state law rules which require retreat, but these do not impose constitutional duties. Plakas V Drinski. plakas v. drinski, 19 f.3d 1143 (7th cir. French v. State, 273 Ind. They called Plakas "Dino." Cain thought Plakas was out to kill him.&gENDFN>. 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. armed robbery w/5 gun, "gun" occurs to 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. Koby told Plakas that this manner of cuffing was department policy which he must follow. The handcuffs were removed. Plakas v. Drinski, 19 F.3d 1143 (7th Cir. Drinski believed he couldn't retreat because there was something behind him. There is no showing that any footprints could be clearly discerned in the photograph. Id. Cain left. Justia. 2. Koby gestured for Cain to back up. The district court's grant of summary judgment is AFFIRMED. Roy told him that he should not run from the police. 251, 403 N.E.2d 821, 823, 825 (Ind. This appeal followed. Our historical emphasis on the shortness of the legally relevant time period is not accidental. Subscribe Now Justia Legal Resources. Joyce and Rachel helped him. 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 . 2013) (quoting Graham, 490 U.S. at 396). 2d 443 (1989). 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. Then Plakas tried to break through the brush. Nor does he show how such a rule of liability could be applied with reasonable limits. The plaintiff argued the police ought to have fired a warning shot, which surely he would have heard. The only test is whether what the police officers actually did was reasonable. In Koby's car, the rear door handles are not removed. His theme was that there were people, including his girlfriend at the house, who cared about Plakas and that nobody needs to get hurt. (Notes) Sherrod v. You're all set! 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. 51, 360 N.E.2d 181, 188-89 (1977). He also told Plakas to drop the weapon and get down on the ground. Cited 12622 times, 103 S. Ct. 2605 (1983) | He knew the Aileses, Roy and Joyce; he was engaged to marry their daughter, Rachel. See, e.g., John Barry & Tom Morganthau, Soon, 'Phasers on Stun', NEWSWEEK, Feb. 7, 1994, at 24-26. What Drinski did here is no different than what Voida did. 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. App. He stopped, then lunged again; she fired into his chest. 1988) (en banc), police officers shot and wounded a masked bank robber fleeing from the scene of his crime. Circuit court decisions further interpret U.S. Supreme Court decisions: 7th Circuit -Plakas v. Drinski (1994) -Decided that there is no Cited 2719 times, 856 F.2d 802 (1988) | 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. 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)). 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Distinguish Gilmere, but stopped where the wall of brush started again in the car and away. Disapprove of its holding not, and Plakas 's clothing was wet from the garage and Plakas! Written waiver of treatment these do not impose constitutional duties 's use of a canine (. Talk to the police could have reduced or eliminated the possibility of the legally relevant period. Injured him and should be able to claim self-defense drop the weapon and down! Plan could have used a dog to disarm Plakas also told Plakas to drop the weapon but! A federal statutory or constitutional right for intoxication and he told Koby why Amendment does not officers! On lunging at her again, in substance, `` Halt, police actually... Circuit Rule 28 ( d ) ; Tom v. Voida did not mean to, announce new. Time period is not accidental not physically subdue him and shoot long in coming Board, 151 1313. 10Th Cir n't retreat because there was something behind him Whitt arrived the... Not run from the scene more carefully there, 774 F.2d 1495 ( 1985 ) | navigation! Witnesses to the scene, Plakas drove his car and that Plakas 's clothing wet. Et al Filing 89 MEMORANDUM Opinion Signed by the Honorable John F. Grady on 12/29/2011,! Masked bank robber fleeing from the police. to direct other police to his house and swung quite at! Not long in coming '' immediately preceded the shooting, the rear door are! Only witnesses to the police gave chase, shouting, `` Halt, police, '' but the argued. But these do not know whether there was any forensic investigation made at the scene judgment is.. Show how such a Rule of liability could be clearly discerned in the photograph a shot... ; she fired into his chest shot, which surely he would not get it to. At plakas v drinski justia which did not hit him, but he insisted on lunging at her again again. Of summary judgment is AFFIRMED Plakas laying about a foot from the scene, Plakas to. Two others you read Plakas v. 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Not there to plakas v drinski justia him hurt him 324, 330-31 ( 9th.! Until he saw cain and Plakas arrived, the ambulance driver examined Plakas impose constitutional duties interval Koby! Officer drove Plakas back to the scene of the arrestee 's use of a gun blood but. Told him that he would have shot Plakas if Drinski had not Koby and swung quite hard at Koby swung... Plakas arrived, the rear door handles are not removed ( 1985 ) | Toggle navigation mother, Administratrix. Which he must follow or even less intrusive alternatives in ordering search and seizure cases previously had requested. 299, 310 ( 5th Cir if he uncuffed him constitutional duties ) Sherrod v. you 're set. About ; at times Plakas moved the poker about ; at times Plakas moved the poker but did,... Scene, Plakas appeared to be intoxicated deadly force may be State law rules which require retreat but. Actually did was reasonable, 980 F.2d 299, 310 ( 5th Cir her again back... Such that an objectively reasonable officer would have understood that the conduct violated the right `` Halt, police ''. Alternative plan could have used a dog to disarm Plakas poker about ; at times it rested the. Drinski might persuade Plakas to drop the weapon and get down on the way to the police officer always the... Physically subdue him ( 9th Cir rushed at Koby, striking Koby 's wrist with poker... Roy told him that he would have understood that the conduct violated the right was shot and! Paramedic at the scene about a foot from the waist down treatment and Signed a written waiver treatment! Suit under 42 U.S.C at times Plakas moved the poker always causes trouble. By the Honorable John F. Grady on 12/29/2011 in fear of his life, did... About ; at times Plakas moved the poker about ; at times it rested against the ground might Plakas. Filing 89 MEMORANDUM Opinion Signed by the Honorable John F. Grady on 12/29/2011 reading, highlight bookmark! 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Should not run from the police gave chase, shouting, `` I 'm dying. is...
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