1994)). Then gripping it with both hands, he continued screaming, louder and louder at Cain and Koby. 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. King called for assistance and another Newton County officer, Corporal David J. Koby, and two paramedics, Glen Cain and Steven Whitt, responded. Perras would have shot Plakas if Drinski had not. Filing 920070312 Deputy Drinski passed by the injured Koby and asked him with what he was hit; Koby told him that Plakas had a poker. Here we distinguish Gilmere, but by doing so we neither approve nor disapprove of its holding. They noticed that his clothes were wet. 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. He raised or cocked the poker but did not swing it. 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. at 1332. 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 refused medical treatment and signed a written waiver of treatment. 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. The alternatives here were three. Plakas v. Drinski, 19 F.3d 1143, 1146 (7th Cir. Likewise, we decline to impose a constitutional requirement to train the police to use all available equipment beyond the acceptable training program already mandated. The time-frame is a crucial aspect of excessive force cases. Plakas, however, merely mentions this testimony to show that Drinski was badly trained. 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. 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." Roy stayed outside to direct other police to his house. Plakas often repeated these thoughts. Cain left. at 1276, n. 8. at 1332. Finally, there is the argument most strongly urged by Plakas. Pratt, 999 F.2d 774 (4th Cir. There is a witness who corroborates the defendant officer's version. Plakas remained semiconscious until medical assistance arrived. Drinski did most of the talking. Cited 42 times, 909 F.2d 324 (1990) | Plakas V. Drinski - Ebook written by . It is true we consider the whole of the event as it appears to the officer involved, but we recognize that the decision to shoot can only be made after the briefest reflection, so brief that "reflection" is the wrong word. He tried to avoid violence. 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). Second, Drinski said he was stopped in his retreat by a tree. Koby also thought that he would have a problem with Plakas if he uncuffed him. Indeed, Plakas merely states this theory, he does not argue it. Drinski did most of the talking. He fled but she caught him. 2d 443, 109 S. Ct. 1865 (1989). Whatever the facts may be, it is hard to attribute to either Drinski or Newton County the inaction of Perras, who is neither a defendant here nor under the command of Newton County, The record before us leaves only room for speculation about some circumstances. Tom, 963 F.2d at 962. 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. 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. See Perfetti v. First Nat'l Bank of Chicago, 950 F.2d 449, 456 (7th 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. Code Ann. As the police moved in, Plakas turned, tripped over a wire fence, and then ran into the woods, still carrying the poker. 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. 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. The alternatives here were three. French v. State, 273 Ind. 6. 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. Taken literally the argument fails because Drinski did use alternative methods. 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. Hyde v. Bowman et al. 1983 against Drinski and Newton County to recover damages in connection with her son's death. Plakas died sometime after he arrived at the hospital. Then Plakas tried to break through the brush. Graham, 490 U.S. at 396-97; see also Sherrod v. Berry, 856 F.2d 802, 806-07 (7th Cir. 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. We always Judge a decision made, as Drinski's was, in an instant or two. This appeal followed. She fired and missed. Plakas was transported to the jail and Plakas escaped from the patrol car. 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. Through an opening in the brush was a clearing. See, e.g., John Barry & Tom Morganthau, Soon, 'Phasers on Stun', NEWSWEEK, Feb. 7, 1994, at 24-26. But did we hold that this imposes a constitutional duty to use (or at least consider) the use of all alternatives? Cited 45 times, 96 S. Ct. 3074 (1976) | Finally he rushed at Koby and swung quite hard at Koby, striking Koby's wrist with the poker. Id. 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 fell on his face inside the doorway, his hands still cuffed behind his back. Mailed notice(cdh, ) Download PDF . Plakas argues there is enough evidence to cast doubt on the defendants' self-defense claim, given the low threshold that courts have set for refuting self-defense in deadly force cases both civil and criminal. She decided she would have to pull her weapon so that he would not get it. Plakas did agree to go to the Sheriff's Department to be tested for intoxication. Perras only saw that Drinski stumbled in his retreat either because he backed into something or simply tripped. 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. His theme was that there were people, including his girlfriend at the house, who cared about Plakas and that nobody needs to get hurt. 1994). 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. 3. Anderson v. Creighton In Anderson v. Creighton, 483 U .S. Roy told him that he should not run from the police. 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. He picked one of them up, a 2-3 foot poker with a hook on its end. 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 police gave chase, shouting, "Stop, Police." 51, 360 N.E.2d 181, 188-89 (Ind. His car had run off the road and wound up in a deep water-filled ditch. 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." Circumstances can alter cases. The only test is whether what the police . 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. He stopped, then lunged again; she fired into his chest. Perras took the poker. For the next quarter-hour or half-hour, Drinski and Perras tried to talk Plakas into surrendering. Plakas was turned on his back. Plakas remained semiconscious until medical assistance arrived. He turned back to Drinski who was 12 to 15 feet away and, with the poker raised, charged at Drinski who backed away. See Martin L. Fackler, M.D., Police Handgun Ammunition Selection, WOUND BALLISTICS REVIEW, Fall 1992, at 32-37 (suggesting little effect beyond stopping movement). Drinski and Perras had entered the house from the garage and saw Plakas leave. When Cain and Plakas arrived, the ambulance driver examined Plakas. 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). 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. . 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." Warren v. Chicago Police Dept. Perras took the poker. 1985) (en banc) . Roy stayed outside to direct other police to his house. 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. When Cain and Plakas arrived, the ambulance driver examined Plakas. 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. Perras and Drinski entered the clearing. 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. 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 . Drinski was in fear of his life, and Plakas's action was sudden and unexpected. 1994), and Russo v. City of Cincinnati, 953 F.2d 1036 Tennessee v. Garner, 471 U.S. 1, 3, 85 L. Ed. 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. Again, he struck her. 1994) 37 reese v. McGarry v. Board of County Commissioners for the County of Lincoln, et al. We refuse to impose as an additional constitutional requirement the firing of a warning shot before deadly force may be used." She did not have her night stick. Cited 96 times, 973 F.2d 1328 (1992) | 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." 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." Second, Drinski said he was stopped in his retreat by a tree. See Reed v. Hoy, 909 F.2d 324, 330-31 (9th Cir. We do not return to the prior segments of the event and, in light of hindsight, reconsider whether the prior police decisions were correct." 7) Drewitt v. . Joyce saw no blood, but saw bumps on his head and bruises. Cited 43 times, 855 F.2d 1271 (1988) | defendant cites Plakas v. Drinski, 19 F.3d 1143, 1148 (7th Cir. Sergeant King stood just outside it. Perhaps we ought not to consider this theory since it was not pled, but it is of no use to Plakas in any event. Roy went out and found Cain, whom he knew, and reported that Plakas was at the Ailes home and willing to come out. . Tennessee v. Garner, 471 U.S. 1, 3, 105 S. Ct. 1694, 1697, 85 L. Ed. Plakas was turned on his back. 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. Other than random attacks, all such cases begin with the decision of a police officer to do something, to help, to arrest, to inquire. Plaintiff: Constantinos Plakas: Defendant: Urban Distribution Systems, Inc. and Robert DeMartin: Case Number: 1:2013cv02533: Filed: April 26, 2013: Court: Drinski believed he couldn't retreat because there was something behind him. The officers who confronted Plakas were not the officers who injured him and should be able to claim self-defense. Leaving aside the absence of evidence of facial injuries from medical records or post-mortem observation, we accept that Mrs. Ailes saw these injuries. The plaintiff argued the police ought to have fired a warning shot, which surely he would have heard. 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. 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. He fell on his face inside the doorway, his hands still cuffed behind his back. Cain stopped and spoke to Plakas who said he was fine except that he was cold. Cain told Corporal Koby to check Plakas for intoxication and he told Koby why. Plaintiff: George Plakas: Defendant: Juul Labs, Inc., Altria Group, Inc., Philip Morris USA, Inc., Altria Client Services LLC, Altria Group Distribution Company . 1989), There are a wide variety of devices available for non-lethal control of those who refuse to surrender, including tasers, capture nets, sticky foam, rubber bullets, and beanbag projectiles. Nor does he show how such a rule of liability could be applied with reasonable limits. 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. The record before us leaves only room for speculation about some circumstances. 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. Since medical assistance previously had been requested for Koby, it was not long in coming. Cain examined Plakas's head and found nothing that required medical treatment. 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." This is not the kind of weighing of least deadly alternatives that Plakas would have us require of Drinski. Plakas was calm until he saw Cain and Koby. The clearing was small, but Plakas and the officers were ten feet apart. 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. Perras only saw that Drinski stumbled in his retreat either because he backed into something or simply tripped. She alleges that her son was armed with only a fireplace poker and posed no serious threat to the safety of Drinski or others. They called Plakas "Dino." They could have used disabling chemical spray, or they could have used a dog to disarm Plakas. Cited 651 times, 105 S. Ct. 1694 (1985) | This inference, however, cannot reasonably be made. Also, in Carter v. Buscher, 973 F.2d 1328 (7th Cir. Find . 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. 2d 1, 105 S. Ct. 1694 (1985). They called Plakas "Dino." letters, 963 F.2d 952 (1992) | Plakas crossed the clearing, but stopped where the wall of brush started again. King, Koby, Cain and Trooper Lucien Mark Perras of the Indiana State Police responded, as did Deputy Sheriff Jeffrey Drinski. 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. He swore Koby would not touch him. 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. In affirming summary judgment for the officer, we said. 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. Having driven Koby and Cain from the house, Plakas walked out of the front door. 5. See Gilmere v. City of Atlanta, 774 F.2d 1495, 1501 (11th Cir. 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. Roy Ailes spoke to Plakas, smelled alcohol on his breath, and found him to be upset and insistent that he did nothing wrong. 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. The only argument in this case is that Plakas did not charge at all. 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. Cain examined Plakas's head and found nothing that required medical treatment. They talked about the handcuffs and the chest scars. 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. 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. The shot hit Plakas in the chest inflicting a mortal wound. Even if there were no other witness, there is virtually nothing in this record to impeach Drinski. 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. Toggle navigation . Bankruptcy Lawyers; Business Lawyers . Circuit Rule 28(d); Branion v. Gramly, 855 F.2d 1256, 1260-61 (7th Cir. Dockets & Filings. Drinski blocked the opening in the brush where all had entered the clearing. 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"). 251, 403 N.E.2d 821, 823, 825 (1980); Montague v. State, 266 Ind. She did not have her night stick. Then gripping it with both hands, he continued screaming, louder and louder at Cain and Koby. They could have used disabling chemical spray, or they could have used a dog to disarm Plakas. King, listening from outside the clearing, thought Drinski might persuade Plakas to drop the weapon, but he did not. 1992). Plakas agreed that Roy should talk to the police. 1994); Martinez v. County of Los Angeles, 47 Cal. 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 selfdefense even if, as Plakas's expert maintains, the man is attempting "suicide by police.". The fourth amendmentt does not require officers to use the least intrusive or even less intrusive alternatives in search and seizure cases. In this sense, the police officer always causes the trouble. 1988) (en banc), police officers shot and wounded a masked bank robber fleeing from the scene of his crime. You already receive all suggested Justia Opinion Summary Newsletters. Plakas yelled a lot at Koby. 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." Drinski believed he couldn't retreat because there was something behind him. Civ. 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. At one point, Plakas lowered the poker but did not lay it down. Plakas opened his shirt to show the scars to Drinski. Plakas also correctly refrains from arguing that the police should have simply walked away and arrested Plakas on another day. Plakas yelled a lot at Koby. Cain left. 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. 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. One of the claims most strongly urged by the plaintiff was that the officer had "a duty to use alternative methods short of deadly force to . 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