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. Cain and Koby were the first to enter. Plakas v. Drinski, 19 F.3d 1143 (7th Cir. There may be state law rules which require retreat, but these do not impose constitutional duties. 5. 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. The Fourth Amendment does not require officers to use the least intrusive or even less intrusive alternatives in ordering search and seizure cases. He stopped, then lunged again; she fired into his chest. The answer is no. 1980); Montague v. State, 266 Ind. The details matter here, so we recite them. City of Springfield, 957 F.2d 953, 959 (1st Cir.1992); cf. Through an opening in the brush was a clearing. Plakas was calm until he saw Cain and Koby. 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. accident), Expand root word by any number of 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. Plakas was turned on his back. Tennessee v. Garner, 471 U.S. 1, 3, 105 S. Ct. 1694, 1697, 85 L. Ed. He moaned and said, "I'm dying." 4. Plaintiff: George Plakas: Defendant: Juul Labs, Inc., Altria Group, Inc., Philip Morris USA, Inc., Altria Client Services LLC, Altria Group Distribution Company . Cain left. Circuit Rule 28(d); Branion v. Gramly, 855 F.2d 1256, 1260-61 (7th Cir. Circumstances can alter cases. 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." The clearing was small, but Plakas and the officers were ten feet apart. Roy told him that he should not run from the police. 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. We do not know whether there was any forensic investigation made at the scene. Plakas refused medical treatment and signed a written waiver of treatment. Koby opened the rear door of his squad car, and Plakas entered the car voluntarily. Seventh Circuit. 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 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. 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. Roy tried to talk Plakas into surrendering. He can claim self-defense to shooting Plakas. Again, he struck her. In any self-defense case, a defendant knows that the only person likely to contradict him or her is beyond reach. What Plakas relies upon are witnesses' descriptions of what they saw in the photograph when asked about it on deposition. 2d 1, 105 S. Ct. 1694 (1985). Joyce and Rachel helped him. He moved toward her. 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. 1985) (en banc) . Plakas turned and faced them. The clearing was small, but Plakas and the officers were ten feet apart. McGarry v. Board of County Commissioners for the County of Lincoln, et al. Plakas ran to the Ailes home located on a private road north of State Road 10. When Cain and Plakas arrived, the ambulance driver examined Plakas. The district judge disagreed and granted summary judgment, 811 F. Supp. 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. The district court's grant of summary judgment is AFFIRMED. 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. 1994) case opinion from the US Court of Appeals for the Seventh Circuit 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. Cain stopped and spoke to Plakas who said he was fine except that he was cold. Graham, 490 U.S. at 396-97, 109 S. Ct. at 1872; see also Sherrod v. Berry, 856 F.2d 802, 806-07 (7th Cir. Joyce Ailes heard Dino banging against the house; she saw him and opened the door. Roy stayed outside to direct other police to his house. As he drove he heard a noise that suggested the rear door was opened. 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. Illinois v. Lafayette, 462 U.S. 640, 647, 77 L. Ed. See Reed v. Hoy, 909 F.2d 324, 330-31 (9th Cir. 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. 1994) - ". She fired and missed. My life isn't worth anything." He fled but she caught him. 1994). Drinski believed he couldn't retreat because there was something behind him. 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. A volunteer fireman found him walking . Graham, 490 U.S. at 396-97; see also Sherrod v. Berry, 856 F.2d 802, 806-07 (7th Cir. 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." 7. The officers told Plakas to drop the poker. 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. He tried to avoid violence. What Plakas relies upon are witnesses' descriptions of what they saw in the photograph when asked about it on deposition. near:5 gun, "gun" occurs to either to Drinski was in fear of his life, and Plakas's action was sudden and unexpected. The alternatives here were three. Koby told Plakas that this manner of cuffing was department policy which he must follow. Plakas agreed that Roy should talk to the police. 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. Cain approached Plakas and saw that Plakas's clothing was wet from the waist down. She did not have her night stick. 4th 334, 54 Cal. Inside the house, Plakas took the poker, slammed it into the wall1 and then beat his head against the wall. Koby moved away and tried to come in the room from another door, but Plakas chased him away, swinging the poker. She alleges that her son was armed with only a fireplace poker and posed no serious threat to the safety of Drinski or others. 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.". Code Ann. at 1276, n.8. 3. Yet we rejected the proposition "that the Fourth Amendment prohibits creating unreasonably dangerous circumstances in which to effect a legal arrest of a suspect." Drinski's retreat was involuntarily stopped, either by his backing into a tree or by a near stumble of some sort. Even if there were no other witness, there is virtually nothing in this record to impeach Drinski. Dockets.Justia.com - 2 - held to a duty of using the most reasonable degree of force to restrain the plaintiff, whereas the law requires only that the . Perras and Drinski entered the clearing. Tom v. Voida did not, and did not mean to, announce a new doctrine. There is no contention that this "invitation" immediately preceded the shooting or caused Plakas to charge Drinski. 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). Cited 105 times, 774 F.2d 1495 (1985) | 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. His theme was that there were people, including his girlfriend at the house, who cared about Plakas and that nobody needs to get hurt. The officers who confronted Plakas were not the officers who injured him and should be able to claim self-defense. Even if there were no other witness, there is virtually nothing in this record to impeach Drinski. Hyde v. Bowman et al. We said, "The officers' split second decision to use their weapons, after twice warning the suspect, was objectively reasonable under the circumstances. . Plakas v. Drinski, 19 F.3d 1143, 1146 (7th Cir. As he drove he heard a noise that suggested the rear door was opened. Again, he struck her. 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. This site is protected by reCAPTCHA and the Google. Plakas V. Drinski. 1992). Yet we rejected the proposition "that the Fourth Amendment prohibits creating unreasonably dangerous circumstances in which to effect a legal arrest of a suspect." Warren v. Chicago Police Dept. 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. 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. 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. Finally he rushed at Koby and swung quite hard at Koby, striking Koby's wrist with the poker. See Gilmere v. City of Atlanta, 774 F.2d 1495, 1501 (11th Cir. 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." You're all set! The handcuffs were removed. 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 only test is whether what the police officers actually did was reasonable. 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. Plakas remained semiconscious until medical assistance arrived. 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). Reconsideration will nearly always reveal that something different could have been done if the officer knew the future before it occurred. 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. Cain saw Plakas push his legs through the circle of his arms, bringing his cuffed hands to the front of his body. He also said, in substance, "Go ahead and shoot. 2009) (per curiam) (quoting Vinyard v. 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? 51, 360 N.E.2d 181, 188-89 (Ind. Plakas remained semiconscious until medical assistance arrived. Voida was justified in concluding that Tom could not have been subdued except through gunfire. Plakas was calm until he saw Cain and Koby. 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. 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. 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. He knew the Aileses, Roy and Joyce; he was engaged to marry their daughter, Rachel. He swore Koby would not touch him. 1994)). Konstantino Plakas was shot once and killed by Jeffrey Drinski, a deputy sheriff. In this sense, the police officer always causes the trouble. 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)). Pasco, et al v. Knoblauch. Circuit Rule 28(d); Branion v. Gramly, 855 F.2d 1256, 1260-61 (7th Cir. Second, Drinski said he was stopped in his retreat by a tree. 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. Plakas told them that he had wrecked his car and that his head hurt. In 1991, Plakas drove his car off a State road into a ditch. 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. 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." Actually, the photograph is not included in the record here. 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. This is not a case where an officer claims to have used deadly force to prevent an escape. 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. Drinski's retreat was involuntarily stopped, either by his backing into a tree or by a near stumble of some sort. 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 . Plakas was transported to the jail and Plakas escaped from the patrol car. Cited 201 times, 855 F.2d 1256 (1988) | There they noticed Plakas was intoxicated. Koby moved away and tried to come in the room from another door, but Plakas chased him away, swinging the poker. We believe the defendant misunderstands the holding in Plakas. There is no contention that this "invitation" immediately preceded the shooting or caused Plakas to charge Drinski. ", Bidirectional search: in armed robbery Deputy Drinski passed by the injured Koby and asked him with what he was hit; Koby told him that Plakas had a poker. Subscribe Now Justia Legal Resources . armed robbery w/5 gun, "gun" occurs to 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. Cited 77 times, 980 F.2d 299 (1992) | They followed him out, now with guns drawn. We do not return to the prior segments of the event and, in light of hindsight, reconsider whether the prior police decisions were correct. Taken literally the argument fails because Drinski did use alternative methods. Plakas also correctly refrains from arguing that the police should have simply walked away and arrested Plakas on another day. Roy went out and found Cain, whom he knew, and reported that Plakas was at the Ailes home and willing to come out. Claim self-defense threat to the police officers actually did was reasonable is no contention that ``. ( 7th Cir this sense, the police officers actually did was.... Tree or by a near stumble of some sort was intoxicated Plakas entered the car.! Which require retreat, but Plakas chased him away, swinging the poker 1694 ( 1985 ) home! 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