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. They noticed that his clothes were wet. 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. 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. 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." Other than random attacks, all such cases begin with the decision of a police officer to do something, to help, to arrest, to inquire. 1988). Finally he rushed at Koby and swung quite hard at Koby, striking Koby's wrist with the poker. Plakas v. Drinski, supra, 19 F.3d at 1148; Myers v. Oklahoma County Board, supra, 151 F.3d at 1318-19. 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. This guiding principle does not fit well here. Plakas was turned on his back. It is obvious that we said Voida thought she had no alternatives. Joyce and Rachel helped 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. right of "armed robbery. 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. Plakas ran to the Ailes home located on a private road north of State Road 10. After the weapon was out, she told him three times, "Please don't make me shoot you." Before CUMMINGS and COFFEY, Circuit Judges, and ZAGEL, District Judge.*. Twice the police called out, "Halt, police," but the plaintiff may not have heard. The only argument in this case is that Plakas did not charge at all. 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. 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 district Judge disagreed and granted summary judgment. Plakas, however, merely mentions this testimony to show that Drinski was badly trained. The shot hit Plakas in the chest inflicting a mortal wound. at 1276, n.8. 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). She had no idea if other officers would arrive. Find a Lawyer. She chased him and, when she caught him, he attacked her, banging her head into a concrete surface. 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. Drinski was in fear of his life, and Plakas's action was sudden and unexpected. Plakas remained semiconscious until medical assistance arrived. After he was shot, Plakas fell to Drinski's right and lay face down semiconscious on the ground. Drinski did not believe that Plakas was ever ready to surrender, although he was calmer for a time. 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. Roy told him that he should not run from the police. . Our historical emphasis on the shortness of the legally relevant time period is not accidental. Drinski blocked the opening in the brush where all had entered the clearing. Illinois. 378, 382 (5th Cir. He fell on his face inside the doorway, his hands still cuffed behind his back. 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)). Subscribe to Justia's Free Summaries of Eleventh Circuit opinions. Cited 105 times, 774 F.2d 1495 (1985) | 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." 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. 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. Circuit court decisions further interpret U.S. Supreme Court decisions: 7th Circuit -Plakas v. Drinski (1994) -Decided that there is no H91-365. 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 . Roy stayed outside to direct other police to his house. Having driven Koby and Cain from the house, Plakas walked out of the front door. 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. 1992). Koby told Plakas that this manner of cuffing was department policy which he must follow. Having driven Koby and Cain from the house, Plakas walked out of the front door. Plakas ran to the Ailes home located on a private road north of State Road 10. 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. She had no idea if other officers would arrive. Plakas brings up a few bits of evidence to do so. 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. . 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. 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. 93-1431. There is no showing that any footprints could be clearly discerned in the photograph. See also Graham v. Connor, 490 U.S. 386, 396, 104 L. Ed. This is not the kind of weighing of least deadly alternatives that Plakas would have us require of Drinski. Cain knew there was an ambulance at that site and that Plakas could be examined more carefully there. Perras took the poker. In 1991, Plakas drove his car off a State road into a ditch. 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. Since medical assistance previously had been requested for Koby, it was not long in coming. 1988) (en banc). She did not have her night stick. Plakas V. Drinski Ecology of Fear Emerging Infectious Diseases NCUA Examiner's Guide Local Budgeting Routledge Handbook on Capital Punishment Principles of Federal Appropriations Law Administration of Insured Home Mortgages Urban Economics and Fiscal Policy Handbook of School Mental Health Policy and Procedures Manual for Guidance of Federal . 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. 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? This is not a case where an officer claims to have used deadly force to prevent an escape. He picked one of them up, a 2-3 foot poker with a hook on its end. 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." 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 . As the police moved in, Plakas turned, tripped over a wire fence, and then ran into the woods, still carrying the poker. Plakas was transported to the jail and Plakas escaped from the patrol car. Plakas complained about being cuffed behind his back. 1991); Tom v. Voida, 963 F.2d 952, 961 (7th Cir. He stopped, then lunged again; she fired into his chest. Cited 2719 times, 856 F.2d 802 (1988) | 2d 1 (1985). Actually, the photograph is not included in the record here. Leaving aside the absence of evidence of facial injuries from medical records or post-mortem observation, we accept that Mrs. Ailes saw these injuries. King, Koby, Cain and Trooper Lucien Mark Perras of the Indiana State Police responded, as did Deputy Sheriff Jeffrey Drinski. Moreover, about ten minutes before the shooting, the services of a canine unit (from Lake County) were offered. In this sense, the police officer always causes the trouble. Inside the house, Plakas took the poker, slammed it into the wall [1] and then beat his head against the wall. The right was clearly established at the time of the conduct. Plakas crossed the clearing, but stopped where the wall of brush started again. Deputy Drinski passed by the injured Koby and asked him with what he was hit; Koby told him that Plakas had a poker. We always Judge a decision made, as Drinski's was, in an instant or two. 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. He also told Plakas to drop the weapon and get down on the ground. Koby sought to reassure Plakas that he was not there to hurt him. 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. Through an opening in the brush was a clearing. 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. Plakas v. Drinski, 19 F. 3d 1143 (7th Cir. 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. 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. 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. ZAGEL, District Judge. 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. Pratt, 999 F.2d 774 (4th Cir. 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. See Perfetti v. First Nat'l Bank of Chicago, 950 F.2d 449, 456 (7th Cir. The plaintiff there was the administrator of the estate of When paramedic Whitt arrived at the clearing, he found Plakas laying about a foot from the brush at one corner of the clearing. 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. He fell on his face inside the doorway, his hands still cuffed behind his back. Perras and Drinski entered the clearing. Drinski believed he couldn't retreat because there was something behind him. Id. 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. plakas v. drinski, 19 f.3d 1143 (7th cir. Rptr. 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. Id. 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. Plakas did agree to go to the Sheriff's Department to be tested for intoxication. You can explore additional available newsletters here. Bankruptcy Lawyers; Business Lawyers . Koby also thought that he would have a problem with Plakas if he uncuffed him. Perras only saw that Drinski stumbled in his retreat either because he backed into something or simply tripped. Inside the house, Plakas took the poker, slammed it into the wall1 and then beat his head against the wall. We do not return to the prior segments of the event and, in light of hindsight, reconsider whether the prior police decisions were correct. Actually, the photograph is not included in the record here. Plakas v. Drinski (7th, 1994) in 1991 Plakas was walking. 5. Perhaps we ought not to consider this theory since it was not pled, but it is of no use to Plakas in any event. The Fourth Amendment does not require officers to use the least intrusive or even less intrusive alternatives in search and seizure cases. Roy Ailes spoke to Plakas, smelled alcohol on his breath, and found him to be upset and insistent that he did nothing wrong. Cain saw Plakas push his legs through the circle of his arms, bringing his cuffed hands to the front of his body. See Reed v. Hoy, 909 F.2d 324, 330-31 (9th Cir. at 1332. 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. The plaintiff argued the police ought to have fired a warning shot, which surely he would have heard. 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. 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. An alternative plan could have reduced or eliminated the possibility of the arrestee's use of a gun. Plakas told them that he had wrecked his car and that his head hurt. 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. 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. Get free summaries of new Seventh Circuit US Court of Appeals opinions delivered to your inbox! In any selfdefense case, a defendant knows that the only person likely to contradict him or her is beyond reach. * The Honorable James B. Zagel, District Judge of the United States District Court for the Northern District of Illinois, is sitting by designation. 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. 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 Koby reported the escape and called for help. Plakas' mother, the Administratrix of his estate, has filed suit under 42 U.S.C. 8. The clearing was small, but Plakas and the officers were ten feet apart. In her response to Drinski's Motion for Summary Judgment, Plaintiff argues that the Indiana Dead Man's Statute, Ind. 1989). Find . He hit the brakes and heard Plakas hit the screen between the front and rear seats. 4th 334, 54 Cal. Roy tried to talk Plakas into surrendering. Jo Ann PLAKAS, individually and as Administrator of the Estate of Konstantino N. Plakas, deceased, Plaintiffs, v. Jeffrey DRINSKI, in both his individual and official capacity and Newton County, Indiana, a municipal unit of government, Defendants. We said, "The officers' split second decision to use their weapons, after twice warning the suspect, was objectively reasonable under the circumstances. et al Filing 89 MEMORANDUM Opinion Signed by the Honorable John F. Grady on 12/29/2011. Koby opened the rear door of his squad car, and Plakas entered the car voluntarily. He swore Koby would not touch him. There may be state law rules which require retreat, but these do not impose constitutional duties. King, listening from outside the clearing, thought Drinski might persuade Plakas to drop the weapon, but he did not. 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. 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. Appx. 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. Graham, 490 U.S. at 396-97; see also Sherrod v. Berry, 856 F.2d 802, 806-07 (7th Cir. He can claim self-defense to shooting Plakas. Salas v. Carpenter, 980 F.2d 299, 310 (5th Cir. The record before us leaves only room for speculation about some circumstances. 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." Here we distinguish Gilmere, but by doing so we neither approve nor disapprove of its holding. There is a witness who corroborates the defendant officer's version. Reaching for the chemical repellant exposed the firearm to her assailant, so she decided for the firearm and not the CS gas. 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 accused Koby of hurting him, and yelled about the handcuffing behind his back and about his scar tissue. Drinski and Perras had entered the house from the garage and saw Plakas leave. The fourth amendmentt does not require officers to use the least intrusive or even less intrusive alternatives in search and seizure cases. 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. Twice the police called out, "Halt, police," but the plaintiff may not have heard. See, e.g., John Barry & Tom Morganthau, Soon, 'Phasers on Stun', NEWSWEEK, Feb. 7, 1994, at 24-26. Joyce saw no blood, but saw bumps on his head and bruises. 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. Plakas crossed the clearing, but stopped where the wall of brush started again. Hyde v. Bowman et al. Again, he struck her. 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). He moaned and said, "I'm dying." King, listening from outside the clearing, thought Drinski might persuade Plakas to drop the weapon, but he did not. 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 died sometime after he arrived at the hospital. As he did so, Plakas slowly backed down a hill in the yard. Even if Koby did beat Plakas, Koby was not at the scene of Plakas's demise. 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. The only witnesses to the shooting were three police officers, Drinski and two others. They followed him out, now with guns drawn. 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." Indeed, Plakas merely states this theory, he does not argue it. at 1276, n. 8. Having driven Koby and Cain from the house, Plakas walked out of the front door. Taken literally the argument fails because Drinski did use alternative methods. He stopped, then lunged again; she fired into his chest. 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. Subscribe to Justia's Free Summaries of Seventh Circuit opinions. 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. This site is protected by reCAPTCHA and the Google. . 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). Even if there were no other witness, there is virtually nothing in this record to impeach Drinski. Perras and Drinski entered the clearing. 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. Drinski believed he couldn't retreat because there was something behind him. Plakas v. Drinski, 19 F.3d 1143 (7th Cir. Tom, 963 F.2d at 962. Argued Nov. 1, 1993. Warren v. Chicago Police Dept. 1994) - ". 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 . What Drinski did here is no different than what Voida did. 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. 2. This is what we mean when we say we refuse to second-guess the officer. armed robbery w/5 gun, "gun" occurs to See Reed v. Hoy, 909 F.2d 324, 330-31 (9th Cir. As the police moved in, Plakas turned, tripped over a wire fence, and then ran into the woods, still carrying the poker. Cain knew there was an ambulance at that site and that Plakas could be examined more carefully there. 2013) (quoting Graham, 490 U.S. at 396). Voida fired one shot at Tom which did not hit him, but he insisted on lunging at her again. There they noticed Plakas was intoxicated. 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. Koby gestured for Cain to back up. She decided she would have to pull her weapon so that he would not get it. 3. Finally he rushed at Koby and swung quite hard at Koby, striking Koby's wrist with the poker. 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. He tried to avoid violence. United States Court of Appeals, Seventh Circuit. 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. They followed him out, now with guns drawn. We always judge a decision made, as Drinski's was, in an instant or two. Cain approached Plakas and saw that Plakas's clothing was wet from the waist down. Tom v. Voida did not, and did not mean to, announce a new doctrine. Salas v. Carpenter, 980 F.2d 299, 310 (5th Cir. Cain left. 2d 1116 (1976). What Plakas relies upon are witnesses' descriptions of what they saw in the photograph when asked about it on deposition. 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. Finally, there is the argument most strongly urged by Plakas. Second, Drinski said he was stopped in his retreat by a tree.