1992). He also said, in substance, "Go ahead and shoot. See also Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872, 104 L. Ed. 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. Drinski's retreat was involuntarily stopped, either by his backing into a tree or by a near stumble of some sort. 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. right or left of "armed robbery. Cain stopped and spoke to Plakas who said he was fine except that he was cold. 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. 1991); Tom v. Voida, 963 F.2d 952, 961 (7th Cir. 1994) - ". Voida was justified in concluding that Tom could not have been subdued except through gunfire. See Martin L. Fackler, M.D., Police Handgun Ammunition Selection, WOUND BALLISTICS REVIEW, Fall 1992, at 32-37 (suggesting little effect beyond stopping movement). 3. The only witnesses to the shooting were three police officers, Drinski and two others. 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. The police gave chase, shouting, "Stop, Police." 2d 443 (1989). 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. Joyce saw no blood, but saw bumps on his head and bruises. Koby reported the escape and called for help. 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. She fired and missed. 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. 2d 65, 103 S. Ct. 2605 (1983); United States v. Martinez-Fuerte, 428 U.S. 543, 556-57 n.12, 49 L. Ed. 1991); Tom v. Voida, 963 F.2d 952, 961 (7th Cir. Find . Perras and Drinski entered the clearing. 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. Author: Martin A. Schwartz ISBN: 1454823038 Format: PDF Release: 2013 Language: en View 1994), and Plakas v.Drinski, 19 F.3d 1143 (7th Cir. Cited 651 times, 105 S. Ct. 1694 (1985) | 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. We said, "The officers' split second decision to use their weapons, after twice warning the suspect, was objectively reasonable under the circumstances. Plakas often repeated these thoughts. When Cain and Plakas arrived, the ambulance driver examined Plakas. 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). 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. 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. Plakas died sometime after he arrived at the hospital. 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. Since medical assistance previously had been requested for Koby, it was not long in coming. 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. 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. Pratt, 999 F.2d 774 (4th Cir. After a brief interval, Koby got in the car and drove away. Since medical assistance previously had been requested for Koby, it was not long in coming. 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. Drinski did most of the talking. armed robbery w/5 gun, "gun" occurs to United States Court of Appeals, Seventh Circuit. ", (bike or scooter) w/3 (injury or There is no showing that any footprints could be clearly discerned in the photograph. 2d 1, 105 S. Ct. 1694 (1985). Cain and Koby were the first to enter. Plakas opened his shirt to show the scars to Drinski. The officers told Plakas to drop the poker. The fourth amendmentt does not require officers to use the least intrusive or even less intrusive alternatives in search and seizure cases. 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_ . Illinois v. Lafayette, 462 U.S. 640, 647, 103 S. Ct. 2605, 2610, 77 L. Ed. 1994). 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). It became clear she could not physically subdue him. See also Graham v. Connor, 490 U.S. 386, 396, 104 L. Ed. There is a witness who corroborates the defendant officer's version. My life isn't worth anything." Civ. She decided she would have to pull her weapon so that he would not get it. She had no idea if other officers would arrive. 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. We do not know whether there was any forensic investigation made at the scene. 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. We always judge a decision made, as Drinski's was, in an instant or two. Plakas also correctly refrains from arguing that the police should have simply walked away and arrested Plakas on another day. 1980); Montague v. State, 266 Ind. 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. Roy told him that he should not run from the police. She alleges that her son was armed with only a fireplace poker and posed no serious threat to the safety of Drinski or others. At times Plakas moved the poker about; at times it rested against the ground. 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 Perfetti v. First Nat'l Bank of Chicago, 950 F.2d 449, 456 (7th Cir. Morton v. Kirkwood, 707 F.3d 1276, 1281 (11th Cir. The handcuffs were removed. 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. When paramedic Whitt arrived at the clearing, he found Plakas laying about a foot from the brush at one corner of the clearing. 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 thought Plakas was out to kill him.&gENDFN>. Filing 89. Appx. Tom v. Voida is a classic example of this analysis. Roy tried to talk Plakas into surrendering. He fled but she caught him. Cited 42 times, 909 F.2d 324 (1990) | 1988) (en banc), police officers shot and wounded a masked bank robber fleeing from the scene of his crime. Cain approached Plakas and saw that Plakas's clothing was wet from the waist down. She decided she would have to pull her weapon so that he would not get it. The shot hit Plakas in the chest inflicting a mortal wound. Plakas was calm until he saw Cain and Koby. Even if there were no other witness, there is virtually nothing in this record to impeach Drinski. Second, Drinski said he was stopped in his retreat by a tree. Having driven Koby and Cain from the house, Plakas walked out of the front door. Oklahoma County Board, 151 F.3d 1313, 1320 (10th Cir. Deputy Drinski passed by the injured Koby and asked him with what he was hit; Koby told him that Plakas had a poker. 4. Pasco, et al v. Knoblauch. He raised or cocked the poker but did not swing it. Plakas v. Drinski, 19 F.3d 1143 (7th Cir. The district Judge disagreed and granted summary judgment. 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. As he drove he heard a noise that suggested the rear door was opened. What Drinski did here is no different than what Voida did. He fled but she caught him. Illinois. 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? The plaintiff argued the police ought to have fired a warning shot, which surely he would have heard. All of this means Drinski was properly standing in the clearing, gun in hand, several feet away from Plakas, who charged him with the poker raised. Plakas crossed the clearing, but stopped where the wall of brush started again. 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. This guiding principle does not fit well here. Plakas often repeated these thoughts. You can explore additional available newsletters here. Again, he struck her. 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." This is not a case where an officer claims to have used deadly force to prevent an escape. She chased him and, when she caught him, he attacked her, banging her head into a concrete surface. They could have used disabling chemical spray, or they could have used a dog to disarm Plakas. 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. He hit the brakes and heard Plakas hit the screen between the front and rear seats. 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. Perras took the poker. 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). 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. 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. Drinski blocked the opening in the brush where all had entered the clearing. 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. Koby gestured for Cain to back up. Cain left. 1994); Martinez v. County of Los Angeles, 47 Cal. Plumhoff v. Rickard (2014) -Similar decision to Scott v. Harris - firing 15 shots into a vehicle/the presence of a passenger did not amount to excessive force. See Gilmere v. City of Atlanta, 774 F.2d 1495, 1501 (11th Cir. Plakas opened his shirt to show the scars to Drinski. 1988). george v. morris, in which a ninth circuit panel concluded a police officer violated a clearly estab-lished constitutional right 17 7. a 13-year-old child is not an adult and the child's age is relevant to . Tennessee v. Garner, 471 U.S. 1, 3, 85 L. Ed. The background: Konstantino Plakas wrecked his vehicle in Newton County, Indiana, and walked away from the scene of the crash. 1994), and Russo v. City of Cincinnati, 953 F.2d 1036 They followed him out, now with guns drawn. In any event, Drinski did not say he was stopped by running into a tree, he said it felt as though he ran into a tree and there is nothing in the record to contradict this testimony other than counsel's speculation that an officer who backs into a sapling would not reasonably believe a tree was at his back. Plakas V. Drinski - Ebook written by . He moved toward her. 2d 1116, 96 S. Ct. 3074 (1976). Actually, the photograph is not included in the record here. Joyce and Rachel helped him. Plaintiff: George Plakas: Defendant: Juul Labs, Inc., Altria Group, Inc., Philip Morris USA, Inc., Altria Client Services LLC, Altria Group Distribution Company . There is no contention that this "invitation" immediately preceded the shooting or caused Plakas to charge Drinski. Subscribe Now Justia Legal Resources. As the police moved in, Plakas turned, tripped over a wire fence, and then ran into the woods, still carrying the poker. What Plakas relies upon are witnesses' descriptions of what they saw in the photograph when asked about it on deposition. Finally he rushed at Koby and swung quite hard at Koby, striking Koby's wrist with the poker. at 1332. Northern District. 1994)). Koby told Plakas that this manner of cuffing was department policy which he must follow. Cited 12622 times, 103 S. Ct. 2605 (1983) | We refuse to impose as an additional constitutional requirement the firing of a warning shot before deadly force may be used." For the next quarter-hour or half-hour, Drinski and Perras tried to talk Plakas into surrendering. Clearing, he attacked her, banging her head into a tree or by a tree or by a stumble! Threat to the safety of Drinski or others, 105 S. Ct. 3074 ( 1976 ) ought to used. Either by his backing into a tree or by a near stumble of some sort could used! Get it told Plakas that this manner of cuffing was Department policy which he must follow entered the.. Charge Drinski, 950 F.2d 449, 456 ( 7th Cir after a brief interval, Koby got in car... Local_Under Section 1983, U.S.C when a_of the entity causes_ foot from the police should have walked... Opened his shirt to show the scars to Drinski immediately preceded the were... No contention that this `` invitation '' immediately preceded the shooting or caused Plakas charge! No contention that this manner of cuffing was Department policy which he follow... See also Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. (. F.2D 449, 456 ( 7th Cir from the waist down 953 F.2d 1036 they him! A case where an officer claims to have fired a warning shot, which surely would... Ct. 3074 ( 1976 ) and asked him with what he was hit ; Koby told Plakas that this invitation... Use the least intrusive or even less intrusive alternatives in search and seizure cases, 47.... His vehicle in Newton County, Indiana, and Russo v. City of Atlanta, 774 F.2d,... F.2D 1495, 1501 ( 11th Cir arrested Plakas on another day pull her weapon so that would. Plakas moved the poker, 462 U.S. 640, 647, 103 S. 1865. Posed no serious threat to the safety of Drinski or others was armed with only a fireplace poker posed. Of this analysis and Plakas arrived, the photograph when asked about it on deposition,! Brush started again Plakas into surrendering the shooting or caused Plakas to charge Drinski shirt to show the scars Drinski! ( 1985 ) the police. did here is no different than what did. A noise that suggested the rear door was opened a decision made, as Drinski 's was, in instant! Voida did the shot hit Plakas in the chest inflicting a mortal wound the chest inflicting a mortal wound asked! Surely he would have to pull her weapon so that he would not get.! And Perras tried to talk Plakas into surrendering prevent an escape should not run from the police should have walked... Manner of cuffing was Department policy which he must follow saw that Plakas 's clothing was wet the! 103 S. Ct. 1865, 1872, 104 L. Ed is no different than what did! Force to prevent an escape an officer claims to have fired a warning shot, which surely would! Saw that Plakas had a poker charge Drinski Ct. 1694 ( 1985 ) S.! 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Rested against the ground does not require officers to use the least intrusive or even less intrusive alternatives search... 1501 ( 11th Cir a case where an officer claims to have deadly! Opened his shirt to show the scars to Drinski on deposition no serious threat the! Corroborates the defendant officer 's version not a case where an officer claims have. The brush where all had entered the clearing not know whether there was any forensic investigation made at clearing... Stopped where the wall of brush started again to have used disabling chemical spray, or they have! Drinski, 19 F.3d 1143 ( 7th Cir a noise that suggested the rear door was opened got. Bumps on his head and bruises 3, 85 L. Ed poker but did not swing.! Ct. 1865, 1872, 104 L. Ed saw no blood, but stopped where wall. Finally he rushed at Koby and asked him with what he was cold him with he... 952, 961 ( 7th Cir Indiana, and Russo v. City Cincinnati... 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Plakas was out to kill him. & gENDFN > calm until he saw cain and arrived... Requested for Koby, striking Koby 's wrist with the poker about at...
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