2d 443, 109 S. Ct. 1865 (1989). His car had run off the road and wound up in a deep water-filled ditch. United States Court of Appeals, Seventh Circuit. Joyce and Rachel helped him. The only argument in this case is that Plakas did not charge at all. 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). There is a witness who corroborates the defendant officer's version. 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. 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. Plakas V. Drinski. Author: Martin A. Schwartz ISBN: 1454823038 Format: PDF Release: 2013 Language: en View 1994), and Plakas v.Drinski, 19 F.3d 1143 (7th Cir. Plakas accused Koby of hurting him, and yelled about the handcuffing behind his back and about his scar tissue. Code Ann. 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. The officers who confronted Plakas were not the officers who injured him and should be able to claim self-defense. 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. See Martin L. Fackler, M.D., Police Handgun Ammunition Selection, WOUND BALLISTICS REVIEW, Fall 1992, at 32-37 (suggesting little effect beyond stopping movement). 1994). This guiding principle does not fit well here. 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. Signed by District Judge R. Stan Baker on 01/06/2023. Then Plakas tried to break through the brush. This appeal followed. In any self-defense case, a defendant knows that the only person likely to contradict him or her is beyond reach. (Notes) Sherrod v. In affirming summary judgment for the officer, we said. Find . See Gilmere v. City of Atlanta, 774 F.2d 1495, 1501 (11th 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. Plakas V. Drinski - Ebook written by . 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. 2d 1116, 96 S. Ct. 3074 (1976). This is not a case where an officer claims to have used deadly force to prevent an escape. Cited 43 times, 855 F.2d 1271 (1988) | Tom v. Voida is a classic example of this analysis. 1991); Tom v. Voida, 963 F.2d 952, 961 (7th Cir. This conclusion accords comfortably with the opinion of Judge Zagel in Plakas v. Drinski, 19 F.3d 1143, 1148-50 (7th Cir. Other than random attacks, all such cases begin with the decision of a police officer to do something, to help, to arrest, to inquire. Since medical assistance previously had been requested for Koby, it was not long in coming. We believe the defendant misunderstands the holding in Plakas. Second, Drinski said he was stopped in his retreat by a tree. The time-frame is a crucial aspect of excessive force cases. 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. 2d 65, 103 S. Ct. 2605 (1983); United States v. Martinez-Fuerte, 428 U.S. 543, 556-57 n.12, 49 L. Ed. At one point, Plakas lowered the poker but did not lay it down. 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. What Drinski did here is no different than what Voida did. 1994); Martinez v. County of Los Angeles, 47 Cal. Drinski did most of the talking. Tom, 963 F.2d at 962. This appeal followed. 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. 1993 . From this, Plakas argues a jury could infer that Officer Koby had beaten Plakas. 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 obvious that we said Voida thought she had no alternatives. He knew the Aileses, Roy and Joyce; he was engaged to marry their daughter, Rachel. 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. 1356. Koby sought to reassure Plakas that he was not there to hurt him. 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. You can explore additional available newsletters here. Voida was justified in concluding that Tom could not have been subdued except through gunfire. 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. Perhaps we ought not to consider this theory since it was not pled, but it is of no use to Plakas in any event. Roy went out and found Cain, whom he knew, and reported that Plakas was at the Ailes home and willing to come out. Second, Drinski said he was stopped in his retreat by a tree. 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. 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. 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. The only test is whether what the police officers actually did was reasonable. The only witnesses to the shooting were three police officers, Drinski and two others. 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. search results: Unidirectional search, left to right: in In doing so, courts must ask whether the force applied was "objectively reasonable in light of the facts confronting the officer." Crenshaw v. Lister, 556 F.3d 1283, 1290 (11th Cir. The Fourth Amendment does not require officers to use the least intrusive or even less intrusive alternatives in search and seizure cases. Heres how to get more nuanced and relevant Justia. The only witnesses to the shooting were three police officers, Drinski and two others. 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 accused Koby of hurting him, and yelled about the handcuffing behind his back and about his scar tissue. The plaintiff there was the administrator of the estate of The alternatives here were three. 1988). Cain and Koby were the first to enter. Warren v. Chicago Police Dept. 1988) (en banc), police officers shot and wounded a masked bank robber fleeing from the scene of his crime. 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. Here we distinguish Gilmere, but by doing so we neither approve nor disapprove of its holding. There is no contention that this "invitation" immediately preceded the shooting or caused Plakas to charge Drinski. His theme was that there were people, including his girlfriend at the house, who cared about Plakas and that nobody needs to get hurt. Perras only saw that Drinski stumbled in his retreat either because he backed into something or simply tripped. 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.". For the next quarter-hour or half-hour, Drinski and Perras tried to talk Plakas into surrendering. defendant cites Plakas v. Drinski, 19 F.3d 1143, 1148 (7th Cir. 1988) (en banc), police officers shot and wounded a masked bank robber fleeing from the scene of his crime. 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). They called Plakas "Dino." Even if Koby did beat Plakas, Koby was not at the scene of Plakas's demise. 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"). Dickerson, 101 F.3d at 1161 (quoting Plakas v. Drinski, 19 F.3d 1143, 1150 (7th Cir. at 1276, n. 8. At one point, Plakas lowered the poker but did not lay it down. 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. The officers told Plakas to drop the poker. Plakas was calm until he saw Cain and Koby. The police gave chase, shouting, "Stop, Police." Plakas remained semiconscious until medical assistance arrived. 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 . Id. 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. 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. Again, he struck her. Plakas crossed the clearing, but stopped where the wall of brush started again. Cain examined Plakas's head and found nothing that required medical treatment. 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. Deputy Drinski passed by the injured Koby and asked him with what he was hit; Koby told him that Plakas had a poker. Dockets & Filings. Tom v. Voida is a classic example of this analysis. 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. 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. She decided she would have to pull her weapon so that he would not get it. 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. Joyce Ailes heard Dino banging against the house; she saw him and opened the door. She chased him and, when she caught him, he attacked her, banging her head into a concrete surface. 2. We said, "The officers' split second decision to use their weapons, after twice warning the suspect, was objectively reasonable under the circumstances. Plakas turned and faced them. Then gripping it with both hands, he continued screaming, louder and louder at Cain and Koby. She alleges that her son was armed with only a fireplace poker and posed no serious threat to the safety of Drinski or others. Filing 82. 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. As he drove he heard a noise that suggested the rear door was opened. Civ. 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. 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. See Perfetti v. First Nat'l Bank of Chicago, 950 F.2d 449, 456 (7th Cir. Yet we rejected the proposition "that the Fourth Amendment prohibits creating unreasonably dangerous circumstances in which to effect a legal arrest of a suspect." The answer is no. 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. Abstract. 4th 334, 54 Cal. 5. 2. 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 . Roy told him that he should not run from the police. 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 district Judge disagreed and granted summary judgment. 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. Paul F. Michel (argued), Thomas McClure, Rosa A. Eliades, Elliott & McClure, Bourbonnais, IL, for Jo Ann PLAKAS. After he was shot, Plakas fell to Drinski's right and lay face down semiconscious on the ground. Tom v. Voida did not, and did not mean to, announce a new doctrine. Also, in Carter v. Buscher, 973 F.2d 1328 (7th Cir. Through an opening in the brush was a clearing. 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. Cain left. No. On the way to the scene of the accident, Cain noticed Plakas walking along State Road 10. Cain and some officers went to the house. If the officer had decided to do nothing, then no force would have been used. You're all set! 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. She did not have her night stick. 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). They could have used disabling chemical spray, or they could have used a dog to disarm Plakas. 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. Cited 201 times, 855 F.2d 1256 (1988) | He picked one of them up, a 2-3 foot poker with a hook on its end. An alternative plan could have reduced or eliminated the possibility of the arrestee's use of a gun. It is significant he never yelled about a beating. As the police moved in, Plakas turned, tripped over a wire fence, and then ran into the woods, still carrying the poker. Such that an objectively reasonable officer would have understood that the conduct violated the right. 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. 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. 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"). Argued Nov. 1, 1993. His theme was that there were people, including his girlfriend at the house, who cared about Plakas and that nobody needs to get hurt. 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)). Plakas' mother, the Administratrix of his estate, has filed suit under 42 U.S.C. Id. His car had run off the road and wound up in a deep water-filled ditch. ZAGEL, District Judge. Moreover, about ten minutes before the shooting, the services of a canine unit (from Lake County) were offered. There is a witness who corroborates the defendant officer's version. He also told Plakas to drop the weapon and get down on the ground. 51, 360 N.E.2d 181, 188-89 (1977). 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." Cain smelled alcohol on Plakas's breath and Plakas dozed off as they rode to the place where the car had gone off the road. There is no contention that this "invitation" immediately preceded the shooting or caused Plakas to charge Drinski. Indeed, Plakas merely states this theory, he does not argue it. This is what we mean when we say we refuse to second-guess the officer. It is significant he never yelled about a beating. He raised or cocked the poker but did not swing it. Illinois v. Lafayette, 462 U.S. 640, 647, 103 S. Ct. 2605, 2610, 77 L. Ed. Perras and Drinski entered the clearing. United States District Court, N.D. Indiana, Hammond Division. We do not return to the prior segments of the event and, in light of hindsight, reconsider whether the prior police decisions were correct. 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. As he drove he heard a noise that suggested the rear door was opened. Cain approached Plakas and saw that Plakas's clothing was wet from the waist down. Voida fired one shot at Tom which did not hit him, but he insisted on lunging at her again. This guiding principle does not fit well here. Roy went out and found Cain, whom he knew, and reported that Plakas was at the Ailes home and willing to come out. Plakas v. Drinski, 19 F. 3d 1143 (7th Cir. He also said, in substance, "Go ahead and shoot. 1994). 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." Cain told Corporal Koby to check Plakas for intoxication and he told Koby why. , 188-89 ( 1977 ) that required medical treatment chase, shouting, ``,... Person likely to contradict him or her is beyond reach had run off road!, 1501 ( 11th Cir Judge Zagel in Plakas v. Drinski, 19 F.3d 1143, (! Likely to contradict him or her is beyond reach and perras tried to Plakas. Is what we mean when we say we refuse to second-guess the officer, we said Voida thought had. Estate of the arrestee 's use of a canine unit ( from Lake County ) were offered up in deep! Services of a gun gripping it with both hands, he continued screaming, and. 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