She decided she would have to pull her weapon so that he would not get it. Cain saw Plakas push his legs through the circle of his arms, bringing his cuffed hands to the front of his body. 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. The alternatives here were three. 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). Koby told Plakas that this manner of cuffing was department policy which he must follow. 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. 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.". Plakas brings up a few bits of evidence to do so. 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. Cited 77 times, 980 F.2d 299 (1992) | King called for assistance and another Newton County officer, Corporal David J. Koby, and two paramedics, Glen Cain and Steven Whitt, responded. He raised or cocked the poker but did not swing it. After he was shot, Plakas fell to Drinski's right and lay face down semiconscious on the ground. The district Judge disagreed and granted summary judgment. Salas v. Carpenter, 980 F.2d 299, 310 (5th Cir. Drinski believed he couldn't retreat because there was something behind him. Cain approached Plakas and saw that Plakas's clothing was wet from the waist down. We refuse to impose as an additional constitutional requirement the firing of a warning shot before deadly force may be used." Konstantino Plakas was shot once and killed by Jeffrey Drinski, a deputy sheriff. There are a wide variety of devices available for nonlethal control of those who refuse to surrender, including tasers, capture nets, sticky foam, rubber bullets, and beanbag projectiles. Bankruptcy Lawyers; Business Lawyers . Morton v. Kirkwood, 707 F.3d 1276, 1281 (11th Cir. The only test is whether what the police officers actually did was reasonable. At one point, Plakas lowered the poker but did not lay it down. See Gilmere v. City of Atlanta, 774 F.2d 1495, 1501 (11th Cir. This is what we mean when we say we refuse to second-guess the officer. 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. 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 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. My life isn't worth anything." 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. . Plakas told them that he had wrecked his car and that his head hurt. 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. Since medical assistance previously had been requested for Koby, it was not long in coming. The officers told Plakas to drop the poker. 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. Plakas brings up a few bits of evidence to do so. Tom v. Voida is a classic example of this analysis. It is significant he never yelled about a beating. right of "armed robbery. 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)). Inside the house, Plakas took the poker, slammed it into the wall1 and then beat his head against the wall. Sign up for our free summaries and get the latest delivered directly to you. 1994); Martinez v. County of Los Angeles, 47 Cal. He turned back to Drinski who was 12 to 15 feet away and, with the poker raised, charged at Drinski who backed away. McGarry v. Board of County Commissioners for the County of Lincoln, et al. Roy went out and found Cain, whom he knew, and reported that Plakas was at the Ailes home and willing to come out. 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. Tom, 963 F.2d at 962. He turned back to Drinski who was 12 to 15 feet away and, with the poker raised, charged at Drinski who backed away. The officers told Plakas to drop the poker. Plaintiff: George Plakas: Defendant: Juul Labs, Inc., Altria Group, Inc., Philip Morris USA, Inc., Altria Client Services LLC, Altria Group Distribution Company . See Perfetti v. First Nat'l Bank of Chicago, 950 F.2d 449, 456 (7th Cir. When paramedic Whitt arrived at the clearing, he found Plakas laying about a foot from the brush at one corner of the clearing. This is not the kind of weighing of least deadly alternatives that Plakas would have us require of Drinski. Cited 428 times, 109 S. Ct. 1865 (1989) | Id. If the officer had decided to do nothing, then no force would have been used. He raised or cocked the poker but did not swing it. His theme was that there were people, including his girlfriend at the house, who cared about Plakas and that nobody needs to get hurt. Plakas did agree to go to the Sheriff's Department to be tested for intoxication. Plakas V. Drinski. Plakas did agree to go to the Sheriff's Department to be tested for intoxication. 7. Cited 96 times, 973 F.2d 1328 (1992) | He fell on his face inside the doorway, his hands still cuffed behind his back. 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." 2. Koby reported the escape and called for help. 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. We do not return to the prior segments of the event and, in light of hindsight, reconsider whether the prior police decisions were correct. Since Drinski did not violate Plakas's rights, there usually is no basis for holding his employer, Newton County, liable. Author: Martin A. Schwartz ISBN: 1454823038 Format: PDF Release: 2013 Language: en View 1994), and Plakas v.Drinski, 19 F.3d 1143 (7th Cir. She had no idea if other officers would arrive. He knew the Aileses, Roy and Joyce; he was engaged to marry their daughter, Rachel. 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 district court's grant of summary judgment is AFFIRMED. 2d 1116, 96 S. Ct. 3074 (1976). They talked about the handcuffs and the chest scars. In this sense, the police officer always causes the trouble. Joyce saw no blood, but saw bumps on his head and bruises. In Ford v. Childers, 855 F.2d 1271 (7th Cir. 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. Drinski blocked the opening in the brush where all had entered the clearing. She alleges that her son was armed with only a fireplace poker and posed no serious threat to the safety of Drinski or others. He stopped, then lunged again; she fired into his chest. Second, Drinski said he was stopped in his retreat by a tree. 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." 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.". Koby frisked Plakas and then handcuffed him, with his hands behind his back. 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. Seventh Circuit. letters, 963 F.2d 952 (1992) | Tom, 963 F.2d at 962. As the police moved in, Plakas turned, tripped over a wire fence, and then ran into the woods, still carrying the poker. Twice the police called out, "Halt, police," but the plaintiff may not have heard. Drinski and Perras had entered the house from the garage and saw Plakas leave. In her response to Drinski's Motion for Summary Judgment, Plaintiff argues that the Indiana Dead Man's Statute, Ind. Read this book using Google Play Books app on your PC, android, iOS devices. 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). 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). After he was shot, Plakas fell to Drinski's right and lay face down semiconscious on the ground. Perras only saw that Drinski stumbled in his retreat either because he backed into something or simply tripped. 1988) (en banc), police officers shot and wounded a masked bank robber fleeing from the scene of his crime. 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. Koby moved away and tried to come in the room from another door, but Plakas chased him away, swinging the poker. near:5 gun, "gun" occurs to either to Roy told him that he should not run from the police. Argued Nov. 1, 1993. Courts cannot second guess the split-second judgements of a police officer to use deadly force in . Also, in Carter v. Buscher, 973 F.2d 1328 (7th Cir. Subscribe Now Justia Legal Resources . She had no idea if other officers would arrive. Deputy Drinski passed by the injured Koby and asked him with what he was hit; Koby told him that Plakas had a poker. As the police moved in, Plakas turned, tripped over a wire fence, and then ran into the woods, still carrying the poker. 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. 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? Warren v. Chicago Police Dept. Tom v. Voida did not, and did not mean to, announce a new doctrine. There is no contention that this "invitation" immediately preceded the shooting or caused Plakas to charge Drinski. We refuse to impose as an additional constitutional requirement the firing of a warning shot before deadly force may be used." at 1332. et al Filing 89 MEMORANDUM Opinion Signed by the Honorable John F. Grady on 12/29/2011. Signed by District Judge R. Stan Baker on 01/06/2023. He tried to avoid violence. Plakas opened his shirt to show the scars to Drinski. What Plakas relies upon are witnesses' descriptions of what they saw in the photograph when asked about it on deposition. 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). In Koby's car, the rear door handles are not removed. 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 51, 360 N.E.2d 181, 188-89 (Ind. The clearing was small, but Plakas and the officers were ten feet apart. In this sense, the police officer always causes the trouble. Civ. After the weapon was out, she told him three times, "Please don't make me shoot you." See also Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872, 104 L. Ed. Cain left. The only witnesses to the shooting were three police officers, Drinski and two others. We always judge a decision made, as Drinski's was, in an instant or two. He picked one of them up, a 2-3 foot poker with a hook on its end. See, e.g., John Barry & Tom Morganthau, Soon, 'Phasers on Stun', NEWSWEEK, Feb. 7, 1994, at 24-26. 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. 3. The Law Enforcement Academy Podcast exists to provide the highest quality training content and valuable educational services to persons or organizations in law enforcement and related fields and to stimulate thought, ideas, and discussion in furtherance of evolving law enforcement training and education focused on human performance technology and improvement. Then Plakas tried to break through the brush. 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. Plakas complained about being cuffed behind his back. Perras and Drinski entered the clearing. We do not return to the prior segments of the event and, in light of hindsight, reconsider whether the prior police decisions were correct. The details matter here, so we recite them. 1356. 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. 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. 1994). 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." It became clear she could not physically subdue him. From a house Plakas grabbed a fire poker and threaten the . 1991); Tom v. Voida, 963 F.2d 952, 961 (7th Cir. United States Court of Appeals, Seventh Circuit. 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