* The Honorable James B. Zagel, District Judge of the United States District Court for the Northern District of Illinois, is sitting by designation. Reaching for the chemical repellant exposed the firearm to her assailant, so she decided for the firearm and not the CS gas. This inference, however, cannot reasonably be made. 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. McGarry v. Board of County Commissioners for the County of Lincoln, et al. Even if there were no other witness, there is virtually nothing in this record to impeach Drinski. 378, 382 (5th Cir. He stopped, then lunged again; she fired into his chest. 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." 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. Drinski did most of the talking. 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." At times Plakas moved the poker about; at times it rested against the ground. 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. Joyce Ailes heard Dino banging against the house; she saw him and opened the door. armed robbery w/5 gun, "gun" occurs to The shot hit Plakas in the chest inflicting a mortal wound. Code Ann. 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 picked one of them up, a 2-3 foot poker with a hook on its end. We refuse to impose as an additional constitutional requirement the firing of a warning shot before deadly force may be used." Koby gestured for Cain to back up. 51, 360 N.E.2d 181, 188-89 (1977). Joyce and Rachel helped him. See, e.g., John Barry & Tom Morganthau, Soon, 'Phasers on Stun', NEWSWEEK, Feb. 7, 1994, at 24-26. 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. 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 selfdefense even if, as Plakas's expert maintains, the man is attempting "suicide by police.". The district court's grant of summary judgment is AFFIRMED. After a brief interval, Koby got in the car and drove away. Plakas yelled a lot at Koby. 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. Tennessee v. Garner, 471 U.S. 1, 3, 105 S. Ct. 1694, 1697, 85 L. Ed. There is no contention that this "invitation" immediately preceded the shooting or caused Plakas to charge Drinski. They talked about the handcuffs and the chest scars. 2013) (quoting Graham, 490 U.S. at 396). Officers found out that Plakas was involved in an accident, so an officer drove Plakas back to the scene. Konstantino Plakas was shot once and killed by Jeffrey Drinski, a deputy sheriff. 1988). 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. The background: Konstantino Plakas wrecked his vehicle in Newton County, Indiana, and walked away from the scene of the crash. Sign up for our free summaries and get the latest delivered directly to you. There they noticed Plakas was intoxicated. In Koby's car, the rear door handles are not removed. 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. This is not a case where an officer claims to have used deadly force to prevent an escape. 6. Since Drinski did not violate Plakas's rights, there usually is no basis for holding his employer, Newton County, liable. In Koby's car, the rear door handles are not removed. 3. Tom, 963 F.2d at 962. 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. We always judge a decision made, as Drinski's was, in an instant or two. From this, Plakas argues a jury could infer that Officer Koby had beaten Plakas. He knew the Aileses, Roy and Joyce; he was engaged to marry their daughter, Rachel. 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 tried for quite a while to get Plakas to lay down the poker and surrender and even attempted to retreat as Plakas charged him. 1985) (en banc) . 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? He moved toward her. Subscribe Now Justia Legal Resources. 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. The shot hit Plakas in the chest inflicting a mortal wound. right or left of "armed robbery. It became clear she could not physically subdue him. This is what we mean when we say we refuse to second-guess the officer. 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. King called for assistance and another Newton County officer, Corporal David J. Koby, and two paramedics, Glen Cain and Steven Whitt, responded. Koby reported the escape and called for help. In this sense, the police officer always causes the trouble. Tom v. Voida is a classic example of this analysis. We believe the defendant misunderstands the holding in Plakas. Get free summaries of new Seventh Circuit US Court of Appeals opinions delivered to your inbox! 2009) (per curiam) (quoting Vinyard v. When paramedic Whitt arrived at the clearing, he found Plakas laying about a foot from the brush at one corner of the clearing. After the weapon was out, she told him three times, "Please don't make me shoot you." The only witnesses to the shooting were three police officers, Drinski and two others. Roy told him that he should not run from the police. What Drinski did here is no different than what Voida did. If the officer had decided to do nothing, then no force would have been used. Reconsideration will nearly always reveal that something different could have been done if the officer knew the future before it occurred. Through an opening in the brush was a clearing. Plakas was turned on his back. 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. The Fourth Amendment does not require officers to use the least intrusive or even less intrusive alternatives in ordering search and seizure cases. 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 police could have tried to put barriers between themselves and Plakas and maintain distance from him. 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). The only witnesses to the shooting were three police officers, Drinski and two others. See Gilmere v. City of Atlanta, 774 F.2d 1495, 1501 (11th Cir. Taken literally the argument fails because Drinski did use alternative methods. Appx. 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. As he did so, Plakas slowly backed down a hill in the yard. Subscribe to Justia's Free Summaries of Eleventh Circuit opinions. After he was shot, Plakas fell to Drinski's right and lay face down semiconscious on the ground. 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." It is significant he never yelled about a beating. Plakas accused Koby of hurting him, and yelled about the handcuffing behind his back and about his scar tissue. 2d 443, 109 S. Ct. 1865 (1989). Filing 89. App. 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. Read this book using Google Play Books app on your PC, android, iOS devices. Again, he struck her. 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. French v. State, 273 Ind. Again, he struck her. Plakas ran to the Ailes home located on a private road north of State Road 10. She did not have her night stick. At one point, Plakas lowered the poker but did not lay it down. 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. . 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. Perras would have shot Plakas if Drinski had not. 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 any self-defense case, a defendant knows that the only person likely to contradict him or her is beyond reach. ZAGEL, District Judge. Our historical emphasis on the shortness of the legally relevant time period is not accidental. Deputy Drinski passed by the injured Koby and asked him with what he was hit; Koby told him that Plakas had a poker. Cain approached Plakas and saw that Plakas's clothing was wet from the waist down. Cain approached Plakas and saw that Plakas's clothing was wet from the waist down. Then the rear door flew open, and Plakas fled into snow-covered woods. 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. Cain and some officers went to the house. Joyce and Rachel helped him. plakas v. drinski, 19 f.3d 1143 (7th cir. Then Plakas tried to break through the brush. Cain told Corporal Koby to check Plakas for intoxication and he told Koby why. We do not know whether there was any forensic investigation made at the scene. 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." See also Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872, 104 L. Ed. 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. 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. She fired and missed. 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. 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. 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"). Plakas v. Drinski (7th, 1994) in 1991 Plakas was walking. 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. Graham, 490 U.S. at 396-97; see also Sherrod v. Berry, 856 F.2d 802, 806-07 (7th Cir. 1994)). 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. There may be state law rules which require retreat, but these do not impose constitutional duties. 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. The record before us leaves only room for speculation about some circumstances. He fell on his face inside the doorway, his hands still cuffed behind his back. 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. Koby opened the rear door of his squad car, and Plakas entered the car voluntarily. See Gilmere v. City of Atlanta, 774 F.2d 1495, 1501 (11th Cir. 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. The only test is whether what the police officers actually did was reasonable. In this sense, the police officer always causes the trouble. 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 . Salas v. Carpenter, 980 F.2d 299, 310 (5th Cir. 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. 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 . 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. 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. U.S. Court of Appeals, Fifth Circuit. Roy stayed outside to direct other police to his house. 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 . Plakas backed into a corner and neared a set of fireplace tools. We do not return to the prior segments of the event and, in light of hindsight, reconsider whether the prior police decisions were correct." 7) Drewitt v. . 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. 7. Plakas also correctly refrains from arguing that the police should have simply walked away and arrested Plakas on another day. Second, Drinski said he was stopped in his retreat by a tree. Author: Martin A. Schwartz ISBN: 1454823038 Format: PDF Release: 2013 Language: en View 1994), and Plakas v.Drinski, 19 F.3d 1143 (7th Cir. Plaintiff: Constantinos Plakas: Defendant: Urban Distribution Systems, Inc. and Robert DeMartin: Case Number: 1:2013cv02533: Filed: April 26, 2013: Court: Roy tried to talk Plakas into surrendering. In Plakas v. Drinski, 19 F.3d 1143 (7th Cir.1994), Plakas's administrator argued that the defendant officer, instead of shooting Plakas, should have used a non-lethal cannister of CS Gas he carried on his belt, or used a canine unit on the scene to take Plakas down, or tried to isolate him while keeping a safe distance. Northern District. Plakas told them that he had wrecked his car and that his head hurt. On the way to the scene of the accident, Cain noticed Plakas walking along State Road 10. Twice the police called out, "Halt, police," but the plaintiff may not have heard. Plakas means to argue that Drinski should have used all available alternatives before deadly force was exercised and that Newton County, Drinski's employer, is liable because it failed to equip and train Drinski to use such methods. The alternatives here were three. 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. He moaned and said, "I'm dying." 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. Salas v. Carpenter, 980 F.2d 299, 310 (5th Cir. She had no idea if other officers would arrive. Cain left. at 1276, n. 8. Id. Filing 82. Leaving aside the absence of evidence of facial injuries from medical records or post-mortem observation, we accept that Mrs. Ailes saw these injuries. 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. Illinois. As he drove he heard a noise that suggested the rear door was opened. The officers told Plakas to drop the poker. For the next quarter-hour or half-hour, Drinski and Perras tried to talk Plakas into surrendering. right of "armed robbery. 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. Heres how to get more nuanced and relevant 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. Plakas yelled a lot at Koby. 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. We do not return to the prior segments of the event and, in light of hindsight, reconsider whether the prior police decisions were correct. King called for assistance and another Newton County officer, Corporal David J. Koby, and two paramedics, Glen Cain and Steven Whitt, responded. You can explore additional available newsletters here. Justia. Since medical assistance previously had been requested for Koby, it was not long in coming. The right was clearly established at the time of the conduct. Rptr. They followed him out, now with guns drawn. He also said, in substance, "Go ahead and shoot. Plakas refused medical treatment and signed a written waiver of treatment. Koby sought to reassure Plakas that he was not there to hurt him. Illinois v. Lafayette, 462 U.S. 640, 647, 77 L. Ed. Indeed, Plakas merely states this theory, he does not argue it. When paramedic Whitt arrived at the clearing, he found Plakas laying about a foot from the brush at one corner of the clearing. Perras only saw that Drinski stumbled in his retreat either because he backed into something or simply tripped. He also said, in substance, "Go ahead and shoot. On the way to the scene of the accident, Cain noticed Plakas walking along State Road 10. The personal representative of a person who had been shot to death by a police officer filed a civil lawsuit against the officer and his employer. letters, 963 F.2d 952 (1992) | 2d 1 (1985). The Fourth Amendment does not require officers to use the least intrusive or even less intrusive alternatives in search and seizure cases. He tried to avoid violence. 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. 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. An alternative plan could have reduced or eliminated the possibility of the arrestee's use of a gun. He raised or cocked the poker but did not swing it. At times Plakas moved the poker about; at times it rested against the ground. 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 . 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. Cain thought Plakas was out to kill him.&gENDFN>. 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." 1992). Pratt, 999 F.2d 774 (4th Cir. Drinski blocked the opening in the brush where all had entered the clearing. Koby frisked Plakas and then handcuffed him, with his hands behind his back. Perras and Drinski entered the clearing. 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. Subscribe to Justia's Free Summaries of Seventh Circuit opinions. They called Plakas "Dino." In affirming summary judgment for the officer, we said. The district judge disagreed and granted summary judgment, 811 F. Supp. 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.". Plakas often repeated these thoughts. Before CUMMINGS and COFFEY, Circuit Judges, and ZAGEL, District Judge.*. Even if Koby did beat Plakas, Koby was not at the scene of Plakas's demise. She decided she would have to pull her weapon so that he would not get it. Inside the house, Plakas took the poker, slammed it into the wall1 and then beat his head against the wall. You're all set! Cited 651 times, 105 S. Ct. 1694 (1985) | et al. In this sense, the police officer always causes the trouble. 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. 1991); Tom v. Voida, 963 F.2d 952, 961 (7th Cir. 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. Cain knew there was an ambulance at that site and that Plakas could be examined more carefully there. 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"). At one point, Plakas lowered the poker but did not lay it down. Plakas means to argue that Drinski should have used all available alternatives before deadly force was exercised and that Newton County, Drinski's employer, is liable because it failed to equip and train Drinski to use such methods. Plakas fell to Drinski 's was, in substance, `` I 'm.... It was not there to hurt him or simply tripped he drove he a! Which require retreat, but these do not know whether there was any forensic investigation made at the scene the. Second-Guess the officer knew the future before it occurred, 471 U.S. 1,,! The possibility of the accident, cain noticed Plakas walking along State Road.. Passed by the injured Koby and asked him with what he was engaged to their... Medical treatment and signed a written waiver of treatment and yelled about handcuffing! To have used deadly force to prevent an escape you. Plakas 's,! 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