The clearing was small, but Plakas and the officers were ten feet apart. Plakas was turned on his back. 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." 2d 443, 109 S. Ct. 1865 (1989). Cited 42 times, 909 F.2d 324 (1990) | See Martin L. Fackler, M.D., Police Handgun Ammunition Selection, WOUND BALLISTICS REVIEW, Fall 1992, at 32-37 (suggesting little effect beyond stopping movement). But did we hold that this imposes a constitutional duty to use (or at least consider) the use of all alternatives? The shot hit Plakas in the chest inflicting a mortal wound. Bankruptcy Lawyers; Business Lawyers . Again, he struck her. 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. The district court's grant of summary judgment is AFFIRMED. She chased him and, when she caught him, he attacked her, banging her head into a concrete surface. 2009) (per curiam) (quoting Vinyard v. Subscribe to Justia's Free Summaries of Eleventh Circuit opinions. If the officer had decided to do nothing, then no force would have been used. In this sense, the police officer always causes the trouble. United States Court of Appeals . Morton v. Kirkwood, 707 F.3d 1276, 1281 (11th Cir. This guiding principle does not fit well here. Drinski believed he couldn't retreat because there was something behind him. He picked one of them up, a 2-3 foot poker with a hook on its end. At times Plakas moved the poker about; at times it rested against the ground. Roy tried to talk Plakas into surrendering. Circumstances can alter cases. He hit the brakes and heard Plakas hit the screen between the front and rear seats. Drinski did most of the talking. Salas v. Carpenter, 980 F.2d 299, 310 (5th Cir. 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." The only witnesses to the shooting were three police officers, Drinski and two others. After the weapon was out, she told him three times, "Please don't make me shoot you." Plakas opened his shirt to show the scars to Drinski. But did we hold that this imposes a constitutional duty to use (or at least consider) the use of all alternatives? King called for assistance and another Newton County officer, Corporal David J. Koby, and two paramedics, Glen Cain and Steven Whitt, responded. Plakas often repeated these thoughts. Plakas ran to the Ailes home located on a private road north of State Road 10. For the next quarter-hour or half-hour, Drinski and Perras tried to talk Plakas into surrendering. Joyce and Rachel helped him. He moved toward her. 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 did agree to go to the Sheriff's Department to be tested for intoxication. In Ford v. Childers, 855 F.2d 1271 (7th Cir. Sergeant King stood just outside it. * The Honorable James B. Zagel, District Judge of the United States District Court for the Northern District of Illinois, is sitting by designation. Before CUMMINGS and COFFEY, Circuit Judges, and ZAGEL, District Judge.*. This site is protected by reCAPTCHA and the Google. After he was shot, Plakas fell to Drinski's right and lay face down semiconscious on the ground. Plakas V. Drinski. 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. 2d 1 (1985). 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. 1980); Montague v. State, 266 Ind. Plakas told them that he had wrecked his car and that his head hurt. Oklahoma County Board, 151 F.3d 1313, 1320 (10th Cir. He raised or cocked the poker but did not swing it. What Drinski did here is no different than what Voida did. We always judge a decision made, as Drinski's was, in an instant or two. Deputy Drinski passed by the injured Koby and asked him with what he was hit; Koby told him that Plakas had a poker. 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). 5. When Cain and Plakas arrived, the ambulance driver examined Plakas. 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. 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. A training program would be created under the bill that would cover racial bias and duty to intervene, and the measure would require that police officers use deadly force only as a last resort and use de-escalation techniques. She did not have her night stick. In this sense, the police officer always causes the trouble. 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. Voida fired one shot at Tom which did not hit him, but he insisted on lunging at her again. Illinois. Plakas v. Drinski (7th, 1994) in 1991 Plakas was walking. 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. The background: Konstantino Plakas wrecked his vehicle in Newton County, Indiana, and walked away from the scene of the crash. 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. See also Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872, 104 L. Ed. 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 . Heres how to get more nuanced and relevant Cain told Corporal Koby to check Plakas for intoxication and he told Koby why. Tom, 963 F.2d at 962. 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? Perhaps we ought not to consider this theory since it was not pled, but it is of no use to Plakas in any event. Tom v. Voida is a classic example of this analysis. At one point, Plakas lowered the poker but did not lay it down. 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. Even if Koby did beat Plakas, Koby was not at the scene of Plakas's demise. Koby told Plakas that this manner of cuffing was department policy which he must follow. at 1276, n. 8. Koby also thought that he would have a problem with Plakas if he uncuffed him. 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. The record before us leaves only room for speculation about some circumstances. Salas v. Carpenter, 980 F.2d 299, 310 (5th Cir. Cited 105 times, 774 F.2d 1495 (1985) | He can claim self-defense to shooting Plakas. 2d 772 (1996). 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. King, listening from outside the clearing, thought Drinski might persuade Plakas to drop the weapon, but he did not. 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. According to a paramedic at the scene, Plakas appeared to be intoxicated. As he did so, Plakas slowly backed down a hill in the yard. Circuit Rule 28(d); Branion v. Gramly, 855 F.2d 1256, 1260-61 (7th Cir. et al Filing 89 MEMORANDUM Opinion Signed by the Honorable John F. Grady on 12/29/2011. 1992). As he did so, Plakas slowly backed down a hill in the yard. 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. Id. Plakas opened his shirt to show the scars to Drinski. This is not a case where an officer claims to have used deadly force to prevent an escape. 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? 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. See, e.g., John Barry & Tom Morganthau, Soon, 'Phasers on Stun', NEWSWEEK, Feb. 7, 1994, at 24-26. 2. Roy tried to talk Plakas into surrendering. 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. The district court's grant of summary judgment is AFFIRMED. It is significant he never yelled about a beating. 1994). 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 . 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. Twice the police called out, "Halt, police," but the plaintiff may not have heard. My life isn't worth anything." Cited 12622 times, 103 S. Ct. 2605 (1983) | 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. He tried to avoid violence. 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. 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, 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. 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. Plaintiff: George Plakas: Defendant: Juul Labs, Inc., Altria Group, Inc., Philip Morris USA, Inc., Altria Client Services LLC, Altria Group Distribution Company . An alternative plan could have reduced or eliminated the possibility of the arrestee's use of a gun. Cain examined Plakas's head and found nothing that required medical treatment. In any selfdefense case, a defendant knows that the only person likely to contradict him or her is beyond reach. Deputy Drinski passed by the injured Koby and asked him with what he was hit; Koby told him that Plakas had a poker. 1983 against Drinski and Newton County to recover damages in connection with her son's death. Koby frisked Plakas and then handcuffed him, with his hands behind his back. Drinski blocked the opening in the brush where all had entered the clearing. The only witnesses to the shooting were three police officers, Drinski and two others. They noticed that his clothes were wet. The district Judge disagreed and granted summary judgment. He knew the Aileses, Roy and Joyce; he was engaged to marry their daughter, Rachel. They noticed that his clothes were wet. Twice the police called out, "Halt, police," but the plaintiff may not have heard. Plakas yelled a lot at Koby. Find a Lawyer. 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. 1. You can explore additional available newsletters here. King called for assistance and another Newton County officer, Corporal David J. Koby, and two paramedics, Glen Cain and Steven Whitt, responded. She did not have her night stick. He moaned and said, "I'm dying." Koby moved away and tried to come in the room from another door, but Plakas chased him away, swinging the poker. Cain left. 3. Court found deputy sheriff's split-second decision to use deadly force to protect himself was objectively reasonable even though suspect was handcuffed where subject was armed with fireplace poker and had already assaulted one officer with the poker. In Koby's car, the rear door handles are not removed. Cain approached Plakas and saw that Plakas's clothing was wet from the waist down. 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. 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. At one point, Plakas lowered the poker but did not lay it down. 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 swore Koby would not touch him. The only argument in this case is that Plakas did not charge at all. His car had run off the road and wound up in a deep water-filled ditch. 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." 2d 443 (1989). at 1332. Voida was justified in concluding that Tom could not have been subdued except through gunfire. 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. Plakas implicitly argues that although Drinski's choice among available alternatives was reasonable, he should have had more choices, i.e., a trained canine, a canister of gas.6 Plakas implicitly seeks to hold Newton County liable for not providing those choices. She decided she would have to pull her weapon so that he would not get it. Plakas v. Drinski, supra, 19 F.3d at 1148; Myers v. Oklahoma County Board, supra, 151 F.3d at 1318-19. In her response to Drinski's Motion for Summary Judgment, Plaintiff argues that the Indiana Dead Man's Statute, Ind. See also Graham v. Connor, 490 U.S. 386, 396, 104 L. Ed. Plakas brings up a few bits of evidence to do so. 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. Joyce saw no blood, but saw bumps on his head and bruises. When paramedic Whitt arrived at the clearing, he found Plakas laying about a foot from the brush at one corner of the clearing. 1994), and Russo v. City of Cincinnati, 953 F.2d 1036 This inference, however, cannot reasonably be made. 1994)).Fifth Circuit: See Thomas v. Baldwin, 595 Fed. 4th 334, 54 Cal. Tom v. Voida did not, and did not mean to, announce a new doctrine. 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. Appx. Download for offline reading, highlight, bookmark or take notes while you read Plakas V. Drinski. 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. 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. The time-frame is a crucial aspect of excessive force cases. right or left of "armed robbery. Toggle navigation . 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. 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. Actually, the photograph is not included in the record here. 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 . Illinois v. Lafayette, 462 U.S. 640, 647, 77 L. Ed. 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. Inside the house, Plakas took the poker, slammed it into the wall1 and then beat his head against the wall. 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. right of "armed robbery. 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. Northern District. In Tom v. Voida we were not addressing Officer Voida's decision to shoot; we were addressing her decision to draw her firearm and, even there, we spoke of a decision process that was quick and simple. My life isn't worth anything." According to Monell V. Department of Social Services Supreme Court held that local_under Section 1983, U.S.C when a_of the entity causes_ . 1977). Circuit Rule 28(d); Branion v. Gramly, 855 F.2d 1256, 1260-61 (7th Cir. The right was clearly established at the time of the conduct. See Gilmere v. City of Atlanta, 774 F.2d 1495, 1501 (11th Cir. Plaintiff: Constantinos Plakas: Defendant: Urban Distribution Systems, Inc. and Robert DeMartin: Case Number: 1:2013cv02533: Filed: April 26, 2013: Court: 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. 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. Plakas yelled a lot at Koby. Koby reported the escape and called for help. In any self-defense case, a defendant knows that the only person likely to contradict him or her is beyond reach. Perras only saw that Drinski stumbled in his retreat either because he backed into something or simply tripped. Plakas crossed the clearing, but stopped where the wall of brush started again. He hit the brakes and heard Plakas hit the screen between the front and rear seats. 51, 360 N.E.2d 181, 188-89 (Ind. Plakas implicitly argues that although Drinski's choice among available alternatives was reasonable, he should have had more choices, i.e., a trained canine, a canister of gas.6 Plakas implicitly seeks to hold Newton County liable for not providing those choices. 3. Roy told him that he should not run from the police. Cited 651 times, 105 S. Ct. 1694 (1985) | There is no contention that this "invitation" immediately preceded the shooting or caused Plakas to charge Drinski. Plakas' mother, the Administratrix of his estate, has filed suit under 42 U.S.C. Find . 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. 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." We refuse to impose as an additional constitutional requirement the firing of a warning shot before deadly force may be used."
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