Cited 2719 times, 856 F.2d 802 (1988) | See also Graham v. Connor, 490 U.S. 386, 396, 104 L. Ed. He fled but she caught him. Twice the police called out, "Halt, police," but the plaintiff may not have heard. Plakas v. Drinski, supra, 19 F.3d at 1148; Myers v. Oklahoma County Board, supra, 151 F.3d at 1318-19. Finally, there is the argument most strongly urged by Plakas. What Drinski did here is no different than what Voida did. Plakas yelled a lot at Koby. 1994). The answer is no. Subscribe to Justia's Free Summaries of Seventh Circuit opinions. 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. U.S. Court of Appeals, Fifth Circuit. Rptr. Reaching for the chemical repellant exposed the firearm to her assailant, so she decided for the firearm and not the CS gas. ", Bidirectional search: in armed robbery A volunteer fireman found him walking . Tennessee v. Garner, 471 U.S. 1, 3, 105 S. Ct. 1694, 1697, 85 L. Ed. H91-365. 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. 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 . 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." After a brief interval, Koby got in the car and drove away. The officers who confronted Plakas were not the officers who injured him and should be able to claim self-defense. Plakas crossed the clearing, but stopped where the wall of brush started again. Pratt, 999 F.2d 774 (4th Cir. 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. He moved toward her. This is what we mean when we say we refuse to second-guess the officer. 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. She alleges that her son was armed with only a fireplace poker and posed no serious threat to the safety of Drinski or others. We said, "The officers' split second decision to use their weapons, after twice warning the suspect, was objectively reasonable under the circumstances. Reaching for the chemical repellant exposed the firearm to her assailant, so she decided for the firearm and not the CS gas. Koby moved away and tried to come in the room from another door, but Plakas chased him away, swinging the poker. Anderson v. Creighton In Anderson v. Creighton, 483 U .S. Perras only saw that Drinski stumbled in his retreat either because he backed into something or simply tripped. We believe the defendant misunderstands the holding in Plakas. Indeed, Plakas merely states this theory, he does not argue it. 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 . He hit the brakes and heard Plakas hit the screen between the front and rear seats. Cain and Koby were the first to enter. Plakas accused Koby of hurting him, and yelled about the handcuffing behind his back and about his scar tissue. accident), Expand root word by any number of . 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. Other than random attacks, all such cases begin with the decision of a police officer to do something, to help, to arrest, to inquire. Cain approached Plakas and saw that Plakas's clothing was wet from the waist down. The time-frame is a crucial aspect of excessive force cases. Plakas often repeated these thoughts. 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. This is not the kind of weighing of least deadly alternatives that Plakas would have us require of Drinski. He fell on his face inside the doorway, his hands still cuffed behind his back. This inference, however, cannot reasonably be made. 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. Plakas, however, merely mentions this testimony to show that Drinski was badly trained. Dickerson, 101 F.3d at 1161 (quoting Plakas v. Drinski, 19 F.3d 1143, 1150 (7th Cir. Actually, the photograph is not included in the record here. Drinski blocked the opening in the brush where all had entered the clearing. The record before us leaves only room for speculation about some circumstances. 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. Since Drinski did not violate Plakas's rights, there usually is no basis for holding his employer, Newton County, liable. 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. We always judge a decision made, as Drinski's was, in an instant or two. 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. In her response to Drinski's Motion for Summary Judgment, Plaintiff argues that the Indiana Dead Man's Statute, Ind. Warren v. Chicago Police Dept. Plakas did agree to go to the Sheriff's Department to be tested for intoxication. 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. After the weapon was out, she told him three times, "Please don't make me shoot you." Since medical assistance previously had been requested for Koby, it was not long in coming. Having driven Koby and Cain from the house, Plakas walked out of the front door. He knew the Aileses, Roy and Joyce; he was engaged to marry their daughter, Rachel. 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. This inference, however, cannot reasonably be made. Plakas was calm until he saw Cain and Koby. Likewise, we decline to impose a constitutional requirement to train the police to use all available equipment beyond the acceptable training program already mandated. Plakas was turned on his back. 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 refused medical treatment and signed a written waiver of treatment. See Gilmere v. City of Atlanta, 774 F.2d 1495, 1501 (11th Cir. ZAGEL, District Judge. 1988) (en banc), police officers shot and wounded a masked bank robber fleeing from the scene of his crime. See Martin L. Fackler, M.D., Police Handgun Ammunition Selection, WOUND BALLISTICS REVIEW, Fall 1992, at 32-37 (suggesting little effect beyond stopping movement). For the next quarter-hour or half-hour, Drinski and Perras tried to talk Plakas into surrendering. In Ford v. Childers, 855 F.2d 1271 (7th Cir. 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. 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. 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. Plakas complained about being cuffed behind his back. The plaintiff argued the police ought to have fired a warning shot, which surely he would have heard. Even if Plakas attacked Drinski and Drinski acted in self-defense, Plakas was still wronged because Drinski had a duty to use alternative methods short of deadly force to resolve the situation before 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. 2d 1116 (1976). 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). 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_ . Sign up for our free summaries and get the latest delivered directly to you. 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. He stopped, then lunged again; she fired into his chest. 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. Second, Drinski said he was stopped in his retreat by a tree. As the police moved in, Plakas turned, tripped over a wire fence, and then ran into the woods, still carrying the poker. 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 Honorable James B. Zagel, District Judge of the United States District Court for the Northern District of Illinois, is sitting by designation. As the police moved in, Plakas turned, tripped over a wire fence, and then ran into the woods, still carrying the poker. 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). Yet we rejected the proposition "that the Fourth Amendment prohibits creating unreasonably dangerous circumstances in which to effect a legal arrest of a suspect." An alternative plan could have reduced or eliminated the possibility of the arrestee's use of a gun. 1991); Tom v. Voida, 963 F.2d 952, 961 (7th Cir. Voida was justified in concluding that Tom could not have been subdued except through gunfire. In affirming summary judgment for the officer, we said. Plakas was calm until he saw Cain and Koby. See Perfetti v. First Nat'l Bank of Chicago, 950 F.2d 449, 456 (7th Cir. He raised or cocked the poker but did not swing it. When paramedic Whitt arrived at the clearing, he found Plakas laying about a foot from the brush at one corner of the clearing. See, e.g., John Barry & Tom Morganthau, Soon, 'Phasers on Stun', NEWSWEEK, Feb. 7, 1994, at 24-26. She had no idea if other officers would arrive. 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. Roy stayed outside to direct other police to his house. The only argument in this case is that Plakas did not charge at all. After he was shot, Plakas fell to Drinski's right and lay face down semiconscious on the ground. He appeared to be blacking out. The details matter here, so we recite them. At one point, Plakas lowered the poker but did not lay it down. 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). An alternative plan could have reduced or eliminated the possibility of the arrestee's use of a gun. In this sense, the police officer always causes the trouble. 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. Konstantino Plakas was shot once and killed by Jeffrey Drinski, a deputy sheriff. 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)). See Reed v. Hoy, 909 F.2d 324, 330-31 (9th Cir. It is obvious that we said Voida thought she had no alternatives. 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. Moreover, about ten minutes before the shooting, the services of a canine unit (from Lake County) were offered. 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. We do not know whether there was any forensic investigation made at the scene. Plakas backed into a corner and neared a set of fireplace tools. 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 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. Plakas refused medical treatment and signed a written waiver of treatment. 7. 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 . 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. 1992). It is significant he never yelled about a beating. Koby told Plakas that this manner of cuffing was department policy which he must follow. Cain left. The police gave chase, shouting, "Stop, Police." Northern District. Even if Plakas attacked Drinski and Drinski acted in self-defense, Plakas was still wronged because Drinski had a duty to use alternative methods short of deadly force to resolve the situation before him. He moved toward her. 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. Here we distinguish Gilmere, but by doing so we neither approve nor disapprove of its holding. 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." Drinski did most of the talking. at 1332. Plakas, however, merely mentions this testimony to show that Drinski was badly trained. 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. 1988) (en banc), police officers shot and wounded a masked bank robber fleeing from the scene of his crime. . They noticed that his clothes were wet. Then Plakas tried to break through the brush. Plakas died sometime after he arrived at the hospital. 378, 382 (5th Cir. McGarry v. Board of County Commissioners for the County of Lincoln, et al. 3. Plakas remained semiconscious until medical assistance arrived. Cited 77 times, 980 F.2d 299 (1992) | The right was clearly established at the time of the conduct. Code Ann. 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. In this sense, the police officer always causes the trouble. See also Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872, 104 L. Ed. Yet we rejected the proposition "that the Fourth Amendment prohibits creating unreasonably dangerous circumstances in which to effect a legal arrest of a suspect." 2. In this sense, the police officer always causes the trouble. Filing 920070312 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 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. 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. 1994) 37 reese v. 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." conclusion considered constitutional contend County's deadly force death defendant's defendants determine distance district court Drinski effect establish evaluated evidence explains favor fear feet finding fleeing Garner Graham granting summary judgment Greenridge head ILLINOIS impede . Filing 82. Plakas charged [the police officer] with the poker raised. 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. Roy tried to talk Plakas into surrendering. Koby gestured for Cain to back up. Having driven Koby and Cain from the house, Plakas walked out of the front door. 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. Second, Drinski said he was stopped in his retreat by a tree. 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. In Koby's car, the rear door handles are not removed. It is significant he never yelled about a beating. Konstantino Plakas was shot once and killed by Jeffrey Drinski, a deputy sheriff. They noticed that his clothes were wet. He can claim self-defense to shooting Plakas. In 1991, Plakas drove his car off a State road into a ditch. 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. Sergeant King stood just outside it. 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