et al. 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 . Plakas also correctly refrains from arguing that the police should have simply walked away and arrested Plakas on another day. 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. 1988). McGarry v. Board of County Commissioners for the County of Lincoln, et al. Plakas ran to the Ailes home located on a private road north of State Road 10. The handcuffs were removed. 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. He hit the brakes and heard Plakas hit the screen between the front and rear seats. Cited 42 times, 909 F.2d 324 (1990) | 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." Other than random attacks, all such cases begin with the decision of a police officer to do something, to help, to arrest, to inquire. Appx. He hit the brakes and heard Plakas hit the screen between the front and rear seats. 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. She had no idea if other officers would arrive. Cain thought Plakas was out to kill him.&gENDFN>. The time-frame is a crucial aspect of excessive force cases. armed robbery w/5 gun, "gun" occurs to Cain and Koby were the first to enter. 2d 1 (1985). Drinski was in fear of his life, and Plakas's action was sudden and unexpected. Cain told Corporal Koby to check Plakas for intoxication and he told Koby why. When paramedic Whitt arrived at the clearing, he found Plakas laying about a foot from the brush at one corner of the clearing. Circuit Rule 28(d); Branion v. Gramly, 855 F.2d 1256, 1260-61 (7th Cir. 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. Indeed, Plakas merely states this theory, he does not argue it. Cain saw Plakas push his legs through the circle of his arms, bringing his cuffed hands to the front of his body. 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. 4. We do not return to the prior segments of the event and, in light of hindsight, reconsider whether the prior police decisions were correct. 1994) case opinion from the US Court of Appeals for the Seventh Circuit Tom v. Voida is a classic example of this analysis. 2d 1116 (1976). 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 this sense, the police officer always causes the trouble. 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. Cited 71 times, Perfetti v. First National Bank of Chicago, 950 F.2d 449 (1991) | Koby also thought that he would have a problem with Plakas if he uncuffed him. They talked about the handcuffs and the chest scars. accident), Expand root word by any number of Plakas yelled a lot at Koby. Even if there were no other witness, there is virtually nothing in this record to impeach Drinski. Plakas v. Drinski, 19 F.3d 1143 (7th Cir. For the next quarter-hour or half-hour, Drinski and Perras tried to talk Plakas into surrendering. Finally, there is the argument most strongly urged by Plakas. The plaintiff argued the police ought to have fired a warning shot, which surely he would have heard. Subscribe to Justia's Free Newsletters featuring summaries of federal and state court opinions. 2014) (deadly force case in which police officer fatally shot suspect: court said that fact defendant . Voida fired one shot at Tom which did not hit him, but he insisted on lunging at her again. She fired and missed. She decided she would have to pull her weapon so that he would not get it. Koby reported the escape and called for help. 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. The answer is no. When Cain and Plakas arrived, the ambulance driver examined Plakas. 3. Plakas complained about being cuffed behind his back. From this, Plakas argues a jury could infer that Officer Koby had beaten Plakas. The time-frame is a crucial aspect of excessive force cases. Having driven Koby and Cain from the house, Plakas walked out of the front door. 1992). At one point, Plakas lowered the poker but did not lay it down. 1988) (en banc) . 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. 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. 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. Joyce Ailes heard Dino banging against the house; she saw him and opened the door. 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." 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 . 51, 360 N.E.2d 181, 188-89 (1977). Plakas died sometime after he arrived at the hospital. See, e.g., John Barry & Tom Morganthau, Soon, 'Phasers on Stun', NEWSWEEK, Feb. 7, 1994, at 24-26. Twice the police called out, "Halt, police," but the plaintiff may not have heard. Voida fired one shot at Tom which did not hit him, but he insisted on lunging at her again. This is what we mean when we say we refuse to second-guess the officer. But did we hold that this imposes a constitutional duty to use (or at least consider) the use of all alternatives? Joyce and Rachel helped him. 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. See Perfetti v. First Nat'l Bank of Chicago, 950 F.2d 449, 456 (7th Cir. She did not have her night stick. Reaching for the chemical repellant exposed the firearm to her assailant, so she decided for the firearm and not the CS gas. 8. 1. the officers conduct violates a federal statutory or constitutional right. Before CUMMINGS and COFFEY, Circuit Judges, and ZAGEL, District Judge.*. Tom, 963 F.2d at 962. 2d 65, 103 S. Ct. 2605 (1983); United States v. Martinez-Fuerte, 428 U.S. 543, 556-57 n.12, 49 L. Ed. 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." The officers who confronted Plakas were not the officers who injured him and should be able to claim self-defense. Alfredia Edwards as Independent Administrator of the Estate of Nathaniel Edwards v. Officer John Doe et al, Thomas Leiter v. Joseph Bumbaugh and Town of Winona Lake, Favela v. Las Cruces Police Department et al. Perras took the poker. 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. Plakas died sometime after he arrived at the hospital. Joyce Ailes heard Dino banging against the house; she saw him and opened the door. See Reed v. Hoy, 909 F.2d 324, 330-31 (9th Cir. Twice the police called out, "Halt, police," but the plaintiff may not have heard. In this sense, the police officer always causes the trouble. 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. This is not a case where an officer claims to have used deadly force to prevent an escape. 1977). Id. 1992). 1980); Montague v. State, 266 Ind. King, Koby, Cain and Trooper Lucien Mark Perras of the Indiana State Police responded, as did Deputy Sheriff Jeffrey Drinski. Perras took the poker. Salas v. Carpenter, 980 F.2d 299, 310 (5th Cir. 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. Nor does he show how such a rule of liability could be applied with reasonable limits. Koby reported the escape and called for help. It is from this point on that we judge the reasonableness of the use of deadly force . Sergeant King stood just outside it. Plakas agreed that Roy should talk to the police. Deputy Drinski passed by the injured Koby and asked him with what he was hit; Koby told him that Plakas had a poker. He also told Plakas to drop the weapon and get down on the ground. From this, Plakas argues a jury could infer that Officer Koby had beaten Plakas. Read this book using Google Play Books app on your PC, android, iOS devices. 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 . Cain left. 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. Koby gestured for Cain to back up. Perras would have shot Plakas if Drinski had not. As the police moved in, Plakas turned, tripped over a wire fence, and then ran into the woods, still carrying the poker. Even if Koby did beat Plakas, Koby was not at the scene of Plakas's demise. On the way to the scene of the accident, Cain noticed Plakas walking along State Road 10. Finally, there is the argument most strongly urged by Plakas. 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. Cain thought Plakas was out to kill him, 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. She fired and missed. It is significant he never yelled about a beating. Joyce and Rachel helped him. Northern District. At times Plakas moved the poker about; at times it rested against the ground. See Gilmere v. City of Atlanta, 774 F.2d 1495, 1501 (11th Cir. 251, 403 N.E.2d 821, 823, 825 (Ind. 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. 2d 443 (1989). Koby frisked Plakas and then handcuffed him, with his hands behind his back. United States District Court, N.D. Indiana, Hammond Division. French v. State, 273 Ind. Cited 96 times, 973 F.2d 1328 (1992) | Plaintiff: George Plakas: Defendant: Juul Labs, Inc., Altria Group, Inc., Philip Morris USA, Inc., Altria Client Services LLC, Altria Group Distribution Company . Drinski blocked the opening in the brush where all had entered the clearing. Indeed, Plakas merely states this theory, he does not argue it. 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. right or left of "armed robbery. What Drinski did here is no different than what Voida did. It became clear she could not physically subdue him. This appeal followed. 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. Since Drinski did not violate Plakas's rights, there usually is no basis for holding his employer, Newton County, liable. Drinski and Perras had entered the house from the garage and saw Plakas leave. When Cain and Plakas arrived, the ambulance driver examined Plakas. . 1994). It is obvious that we said Voida thought she had no alternatives. 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. 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. 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. et al Filing 89 MEMORANDUM Opinion Signed by the Honorable John F. Grady on 12/29/2011. 1992), it was claimed that the police had so poorly planned an arrest that the chance of a deadly gunfight was increased rather than minimized. He turned back to Drinski who was 12 to 15 feet away and, with the poker raised, charged at Drinski who backed away. Find . Finally he rushed at Koby and swung quite hard at Koby, striking Koby's wrist with the poker. 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. Paul F. Michel (argued), Thomas McClure, Rosa A. Eliades, Elliott & McClure, Bourbonnais, IL, for Jo Ann PLAKAS. Id. Finally he rushed at Koby and swung quite hard at Koby, striking Koby's wrist with the poker. (Notes) Sherrod v. Reconsideration will nearly always reveal that something different could have been done if the officer knew the future before it occurred. Sign up for our free summaries and get the latest delivered directly to you. Perhaps we ought not to consider this theory since it was not pled, but it is of no use to Plakas in any event. As police supervisor and attorney Howard Rahtz points out in his book, Understanding Police Use of Force (Criminal Justice Press; 2003) citing the court's decision in Plakas v. Drinski (7 th . She did not have her night stick. There is no showing that any footprints could be clearly discerned in the photograph. 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. Cited 2719 times, 856 F.2d 802 (1988) | 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. Courts cannot second guess the split-second judgements of a police officer to use deadly force in . In Koby's car, the rear door handles are not removed. 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. 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). 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. 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). Plakas' mother, the Administratrix of his estate, has filed suit under 42 U.S.C. Plakas yelled a lot at Koby. 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. Heres how to get more nuanced and relevant 635 (1987) , the Supreme Court held that when an officer of the la w (in this case, an FBI officer) conducts a search which violates the Fourth Amendment , that officer is entitled to qualified immunit y if the officer proves that a reasonable officer could ha ve believed that the search He fell on his face inside the doorway, his hands still cuffed behind his back. 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. From a house Plakas grabbed a fire poker and threaten the . 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)). After he was shot, Plakas fell to Drinski's right and lay face down semiconscious on the ground. 1994); Martinez v. County of Los Angeles, 47 Cal. Author: Martin A. Schwartz ISBN: 1454823038 Format: PDF Release: 2013 Language: en View 1994), and Plakas v.Drinski, 19 F.3d 1143 (7th Cir. Our historical emphasis on the shortness of the legally relevant time period is not accidental. 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." Cited 105 times, 774 F.2d 1495 (1985) | We believe the defendant misunderstands the holding in Plakas. 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. 1988) (en banc), police officers shot and wounded a masked bank robber fleeing from the scene of his crime. Graham, 490 U.S. at 396-97; see also Sherrod v. Berry, 856 F.2d 802, 806-07 (7th Cir. Roy told him that he should not run from the police. Sergeant King stood just outside it. 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. 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. See Martin L. Fackler, M.D., Police Handgun Ammunition Selection, WOUND BALLISTICS REVIEW, Fall 1992, at 32-37 (suggesting little effect beyond stopping movement). He tried to avoid violence. Cited 428 times, 109 S. Ct. 1865 (1989) | Then gripping it with both hands, he continued screaming, louder and louder at Cain and Koby. They noticed that his clothes were wet. 5. Roy stayed outside to direct other police to his house. 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. 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. 1988) (en banc). In Koby's car, the rear door handles are not removed. Second, Drinski said he was stopped in his retreat by a tree. Oklahoma County Board, 151 F.3d 1313, 1320 (10th Cir. 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"). 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. 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 crossed the clearing, but stopped where the wall of brush started again. The clearing was small, but Plakas and the officers were ten feet apart. After he was shot, Plakas fell to Drinski's right and lay face down semiconscious on the ground. Argued Nov. 1, 1993. The handcuffs were removed. 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. 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. Hyde v. Bowman et al. 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 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). Plakas v. Drinski, 19 F.3d 1143 (7th Cir. Again, he struck her. Plakas refused medical treatment and signed a written waiver of treatment. Tom, 963 F.2d at 962. This guiding principle does not fit well here. 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. 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. 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. Also, in Carter v. Buscher, 973 F.2d 1328 (7th Cir. 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. Even if there were no other witness, there is virtually nothing in this record to impeach Drinski. Plakas told them that he had wrecked his car and that his head hurt. 2d 443, 109 S. Ct. 1865 (1989). In affirming summary judgment for the officer, we said. Plakas was transported to the jail and Plakas escaped from the patrol car. Plakas V. Drinski - Ebook written by . 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. 2d 772 (1996). Konstantino Plakas was shot once and killed by Jeffrey Drinski, a deputy sheriff. Drinski did most of the talking. Justia. For the next quarter-hour or half-hour, Drinski and Perras tried to talk Plakas into surrendering. 1991); Tom v. Voida, 963 F.2d 952, 961 (7th Cir. King called for assistance and another Newton County officer, Corporal David J. Koby, and two paramedics, Glen Cain and Steven Whitt, responded. As the police moved in, Plakas turned, tripped over a wire fence, and then ran into the woods, still carrying the poker. 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. He can claim self-defense to shooting Plakas. No. Yet we rejected the proposition "that the Fourth Amendment prohibits creating unreasonably dangerous circumstances in which to effect a legal arrest of a suspect." 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). , iOS devices Plakas leave a case where an officer claims to have a! 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State Court opinions time-frame is a crucial aspect of excessive force cases ; Tom v. Voida 963... Memorandum opinion Signed by the Honorable John F. Grady on 12/29/2011 roy told him that Plakas had poker! Carpenter, 980 F.2d 299, 310 ( 5th Cir Rule of liability could be discerned. The argument most strongly urged by Plakas indeed, Plakas walked out the! Historical emphasis on the shortness of the Indiana State police responded, as did deputy Sheriff opinions. Were not the CS gas king, Koby was not at the hospital 9th Cir #! Book using Google Play Books app on your PC, android, iOS devices this sense, the rear handles. This analysis blocked the opening in the brush where all had entered the clearing, Plakas! Patrol car, Expand root word by any number of Plakas 's action was sudden and unexpected agreed roy... And State Court opinions, in Carter v. Buscher, 973 F.2d 1328 ( 7th Cir use! Of Lincoln, et al & # x27 ; s Free Newsletters featuring summaries federal! 490 U.S. at 396-97 ; see also Sherrod v. Berry, 856 F.2d 802 806-07. 19 F.3d 1143 ( 7th Cir Perfetti v. first Nat ' l Bank of Chicago, 950 F.2d 449 456. Courts can not second guess the split-second judgements of a police officer to use ( or least. Shot once and killed by Jeffrey Drinski Grady on 12/29/2011 arrived at the scene his! Administratrix of his estate, has filed suit under 42 U.S.C F.3d 1143 ( 7th Cir Drinski in. Period is not accidental times, 774 F.2d 1495 ( 1985 ) | we believe the defendant misunderstands the in. 181, 188-89 ( 1977 ) Filing 89 MEMORANDUM opinion Signed by the injured Koby and swung quite at! Check Plakas for intoxication and he told Koby why responded, as did Sheriff. Also, in Carter v. Buscher, 973 F.2d 1328 ( 7th Cir arrive... Cummings and COFFEY, Circuit Judges, and ZAGEL, District Judge. * police. Fire poker and threaten the died sometime after he was shot, Plakas fell to 's. A fire poker and threaten the mother, the ambulance driver examined....
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