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 We know the caliber of the bullet, but not its type or weight or the power of the charge in the cartridge, nor do we know where it struck Plakas and what effect it might have on the position of the body. Plakas remained semiconscious until medical assistance arrived. 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. If the officer had decided to do nothing, then no force would have been used. Justia. When paramedic Whitt arrived at the clearing, he found Plakas laying about a foot from the brush at one corner of the clearing. Cain thought Plakas was out to kill him.&gENDFN>. 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. Plakas, however, merely mentions this testimony to show that Drinski was badly trained. 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. Plakas told them that he had wrecked his car and that his head hurt. Plakas accused Koby of hurting him, and yelled about the handcuffing behind his back and about his scar tissue. King called for assistance and another Newton County officer, Corporal David J. Koby, and two paramedics, Glen Cain and Steven Whitt, responded. Civ. When the police first saw Plakas, at about 9:30 p.m. on February 2, 1991, he was walking along State Road 10 in Newton County, Indiana, not far from the Illinois state line. 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"). 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. Code Ann. Seventh Circuit. No. This is not a case where an officer claims to have used deadly force to prevent an escape. The answer is no. See Reed v. Hoy, 909 F.2d 324, 330-31 (9th Cir. At one point, Plakas lowered the poker but did not lay it down. Deputy Drinski passed by the injured Koby and asked him with what he was hit; Koby told him that Plakas had a poker. My life isn't worth anything." Subscribe to Justia's Free Newsletters featuring summaries of federal and state court opinions. 2d 443 (1989). It is significant he never yelled about a beating. 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. Cain and Koby were the first to enter. 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. Perras would have shot Plakas if Drinski had not. letters, 963 F.2d 952 (1992) | 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. 5. 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. They followed him out, now with guns drawn. This is what we mean when we say we refuse to second-guess the officer. Since medical assistance previously had been requested for Koby, it was not long in coming. In her response to Drinski's Motion for Summary Judgment, Plaintiff argues that the Indiana Dead Man's Statute, Ind. An alternative plan could have reduced or eliminated the possibility of the arrestee's use of a gun. She fired and missed. Find . Moreover, when Plakas did say anything at all about Koby, it was a complaint about cuffing him behind his back, which he said (without medical corroboration even now) caused pain because of his scar tissue. If the officer had decided to do nothing, then no force would have been used. Cain saw Plakas push his legs through the circle of his arms, bringing his cuffed hands to the front of his body. See, e.g., John Barry & Tom Morganthau, Soon, 'Phasers on Stun', NEWSWEEK, Feb. 7, 1994, at 24-26. Hyde v. Bowman et al. Moreover, when Plakas did say anything at all about Koby, it was a complaint about cuffing him behind his back, which he said (without medical corroboration even now) caused pain because of his scar tissue. Drinski did most of the talking. right of "armed robbery. Drinski's retreat was involuntarily stopped, either by his backing into a tree or by a near stumble of some sort. Voida was justified in concluding that Tom could not have been subdued except through gunfire. The shot hit Plakas in the chest inflicting a mortal wound. Toggle navigation . Voida was justified in concluding that Tom could not have been subdued except through gunfire. 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 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. Plakas ran to the Ailes home located on a private road north of State Road 10. Jo Ann PLAKAS, Individually and as Administrator of the Estate of Konstantino N. Plakas, Deceased, Plaintiff-Appellant, v. Jeffrey DRINSKI, in both his individual and official capacity and Newton County, Indiana, a municipal unit of government, Defendants-Appellees. 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. They could have used disabling chemical spray, or they could have used a dog to disarm Plakas. 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. Subscribe to Justia's Free Summaries of Eleventh Circuit opinions. 2d 1116, 96 S. Ct. 3074 (1976). Plakas refused medical treatment and signed a written waiver of treatment. 1994). Here it is beyond dispute that, under the Constitution, the police could reasonably (1) arrest Plakas for drunk driving after he exhibited familiar signs of intoxication; (2) track down an escaping arrestee; (3) draw and point weapons after Plakas armed himself and attacked an officer; (4) pursue Plakas into the clearing after he committed a violent offense and was a danger to himself; and (5) try to talk Plakas into disarming himself and surrendering. This is not the kind of weighing of least deadly alternatives that Plakas would have us require of Drinski. Tennessee v. Garner, 471 U.S. 1, 3, 85 L. Ed. near:5 gun, "gun" occurs to either to Drinski's retreat was involuntarily stopped, either by his backing into a tree or by a near stumble of some sort. 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. In Koby's car, the rear door handles are not removed. 1994); Martinez v. County of Los Angeles, 47 Cal. Since Drinski did not violate Plakas's rights, there usually is no basis for holding his employer, Newton County, liable. We said, " [T]he officers' split second decision to use their weapons, after twice warning the suspect, was objectively reasonable under the circumstances. Plakas v. Drinski, 19 F.3d 1143 (7th Cir. The plaintiff argued the police ought to have fired a warning shot, which surely he would have heard. Our historical emphasis on the shortness of the legally relevant time period is not accidental. Inside the house, Plakas took the poker, slammed it into the wall [1] and then beat his head against the wall. . This is not the kind of weighing of least deadly alternatives that Plakas would have us require of Drinski. It is from that point on that we judge the reasonableness of the use of deadly force in light of all that the officer knew. They talked about the handcuffs and the chest scars. Tom, 963 F.2d at 962. We refuse to impose as an additional constitutional requirement the firing of a warning shot before deadly force may be used." 1992). The officers who confronted Plakas were not the officers who injured him and should be able to claim self-defense. Justia. 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. The only test is whether what the police . 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. After he was shot, Plakas fell to Drinski's right and lay face down semiconscious on the ground. 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. Morton v. Kirkwood, 707 F.3d 1276, 1281 (11th Cir. Koby gestured for Cain to back up. Bankruptcy Lawyers; Business Lawyers . 1991); Tom v. Voida, 963 F.2d 952, 961 (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." Dickerson, 101 F.3d at 1161 (quoting Plakas v. Drinski, 19 F.3d 1143, 1150 (7th Cir.1994)). 51, 360 N.E.2d 181, 188-89 (Ind. 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. We do not return to the prior segments of the event and, in light of hindsight, reconsider whether the prior police decisions were correct. Plakas v. Drinski, 19 F.3d 1143, 1146 (7th Cir. He turned back to Drinski who was 12 to 15 feet away and, with the poker raised, charged at Drinski who backed away. She had no idea if other officers would arrive. Sergeant King stood just outside it. There is no contention that this "invitation" immediately preceded the shooting or caused Plakas to charge Drinski. Plakas accused Koby of hurting him, and yelled about the handcuffing behind his back and about his scar tissue. Indeed, Plakas merely states this theory, he does not argue it. The plaintiff argued the police ought to have fired a warning shot, which surely he would have heard. Plakas charged [the police officer] with the poker raised. French v. State, 273 Ind. We always Judge a decision made, as Drinski's was, in an instant or two. Circumstances can alter cases. Dickerson, 101 F.3d at 1161 (quoting Plakas v. Drinski, 19 F.3d 1143, 1150 (7th Cir. 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. 1994) 37 reese v. Circuit court decisions further interpret U.S. Supreme Court decisions: 7th Circuit -Plakas v. Drinski (1994) -Decided that there is no He moved toward her. The district judge disagreed and granted summary judgment, 811 F. Supp. They could have used disabling chemical spray, or they could have used a dog to disarm Plakas. Cain left. Perras and Drinski entered the clearing. Officers found out that Plakas was involved in an accident, so an officer drove Plakas back to the scene. This guiding principle does not fit well here. Salas v. Carpenter, 980 F.2d 299, 310 (5th Cir. Roy stayed outside to direct other police to his house. From a house Plakas grabbed a fire poker and threaten the . Drinski and Perras had entered the house from the garage and saw Plakas leave. Plakas' mother, the Administratrix of his estate, has filed suit under 42 U.S.C. Plakas did agree to go to the Sheriff's Department to be tested for intoxication. He picked one of them up, a 2-3 foot poker with a hook on its end. Cain knew there was an ambulance at that site and that Plakas could be examined more carefully there. 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. 1994) - ". Nor does he show how such a rule of liability could be applied with reasonable limits. Again, he struck her. 1992). 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.". 1985) (en banc). The police gave chase, shouting, "Stop, Police." Koby sought to reassure Plakas that he was not there to hurt him. Actually, the photograph is not included in the record here. 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. He appeared to be blacking out. 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. Twice the police called out, "Halt, police," but the plaintiff may not have heard. See also Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872, 104 L. Ed. at 1332. At one point, Plakas lowered the poker but did not lay it down. 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. 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. 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. Let's analyze another landmark decision, this one of Plakas v. Drinski (1993), decided by the US 7th District Court of Appeals, Northern District of Indiana, Hammond Division. 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. 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). Plakas told them that he had wrecked his car and that his head hurt. 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. Plakas was transported to the jail and Plakas escaped from the patrol car. Koby opened the rear door of his squad car, and Plakas entered the car voluntarily. 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. . Joyce and Rachel helped him. He swore Koby would not touch him. 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. 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. Cain stopped and spoke to Plakas who said he was fine except that he was cold. 2014) (deadly force case in which police officer fatally shot suspect: court said that fact defendant . He turned back to Drinski who was 12 to 15 feet away and, with the poker raised, charged at Drinski who backed away. She fired and missed. Plakas, however, merely mentions this testimony to show that Drinski was badly trained. Dockets & Filings. Plakas also correctly refrains from arguing that the police should have simply walked away and arrested Plakas on another day. 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. Download for offline reading, highlight, bookmark or take notes while you read Plakas V. Drinski. It is significant he never yelled about a beating. We refuse to impose as an additional constitutional requirement the firing of a warning shot before deadly force may be used." There is no contention that this "invitation" immediately preceded the shooting or caused Plakas to charge Drinski. Subscribe Now Justia Legal Resources. 1985) (en banc) . Voida fired one shot at Tom which did not hit him, but he insisted on lunging at her again. Plakas refused medical treatment and signed a written waiver of treatment. They called Plakas "Dino." Then gripping it with both hands, he continued screaming, louder and louder at Cain and Koby. The time-frame is a crucial aspect of excessive force cases. 1988) (en banc). 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. What Plakas relies upon are witnesses' descriptions of what they saw in the photograph when asked about it on deposition. Drinski blocked the opening in the brush where all had entered the clearing. Roy went out and found Cain, whom he knew, and reported that Plakas was at the Ailes home and willing to come out. Nearly every court has commented on that fact that all decisions about deadly force (or any force) "must embody allowance for the fact that police officers are often forced to make split second judgments--in circumstances that are tense, uncertain and rapidly evolving." And there is no reason to discount the testimony of Trooper Perras; he is neither a defendant himself nor employed by the defendant Newton County. 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. Joyce saw no blood, but saw bumps on his head and bruises. 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 . Appx. (Notes) Sherrod v. 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. Mailed notice(cdh, ) Download PDF . Roy Ailes spoke to Plakas, smelled alcohol on his breath, and found him to be upset and insistent that he did nothing wrong. Plakas v. Drinski, supra, 19 F.3d at 1148; Myers v. Oklahoma County Board, supra, 151 F.3d at 1318-19. Plakas also correctly refrains from arguing that the police should have simply walked away and arrested Plakas on another day. Finally, there is the argument most strongly urged by Plakas. 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. At times Plakas moved the poker about; at times it rested against the ground. Perras only saw that Drinski stumbled in his retreat either because he backed into something or simply tripped. Plakas v. Drinski (7th, 1994) in 1991 Plakas was walking. From this, Plakas argues a jury could infer that Officer Koby had beaten Plakas. Plakas crossed the clearing, but stopped where the wall of brush started again. Koby gestured for Cain to back up. In this record, there is expert opinion that Drinski might have been better trained to negotiate with Plakas and that he may have said one thing to Plakas that he ought not to have said, i.e., that Plakas could hit Drinski with the poker as long as it was not in the head. Cited 43 times, 855 F.2d 1271 (1988) | 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. Perras only saw that Drinski stumbled in his retreat either because he backed into something or simply tripped. On the way to the scene of the accident, Cain noticed Plakas walking along State Road 10. 1992). After the weapon was out, she told him three times, "Please don't make me shoot you." Illinois. According to a paramedic at the scene, Plakas appeared to be intoxicated. Elizabeth A. Knight (argued), Colleen Considine Coburn, Knight, Hoppe, Fanning & Knight, Des Plaines, IL, Daniel C. Blaney, Blaney, Casey & Walton, Morocco, IN, Janella L. Barbrow, Schmidt & Barbrow, Wheaton, IL, for Jeffrey Drinski and Newton County, Ind. He raised or cocked the poker but did not swing it. Tom v. Voida is a classic example of this analysis. H91-365. Even if Koby did beat Plakas, Koby was not at the scene of Plakas's demise. After a brief interval, Koby got in the car and drove away. For the next quarter-hour or half-hour, Drinski and Perras tried to talk Plakas into surrendering. 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. 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. One point, Plakas lowered the poker but did not hit him, but saw bumps on head! Cain saw Plakas push his legs through the circle of his squad car, and yelled about the handcuffing his... 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Oklahoma County Board, supra, 19 F.3d,! Clearing, but he insisted on lunging at her again claim self-defense Justia & # x27 ; Free! Out that Plakas would have us require of Drinski talked about the handcuffing behind his back and about scar! Had wrecked his car and that Plakas would have us require of Drinski does not argue it has suit... A mortal wound crossed the clearing have heard stayed outside to direct other police to his..
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