search results: Unidirectional search, left to right: in The police could have tried to put barriers between themselves and Plakas and maintain distance from him. 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, 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'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. From this, Plakas argues a jury could infer that Officer Koby had beaten Plakas. The clearing was small, but Plakas and the officers were ten feet apart. Even if there were no other witness, there is virtually nothing in this record to impeach Drinski. What Drinski did here is no different than what Voida did. Illinois. Plakas remained semiconscious until medical assistance arrived. 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. Koby gestured for Cain to back up. 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. Bankruptcy Lawyers; Business Lawyers . 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. Since medical assistance previously had been requested for Koby, it was not long in coming. Tom v. Voida did not, and did not mean to, announce a new doctrine. It is significant he never yelled about a beating. Plakas V. Drinski - Ebook written by . Argued Nov. 1, 1993. 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. Voida was justified in concluding that Tom could not have been subdued except through gunfire. 3. Then Plakas tried to break through the brush. What Drinski did here is no different than what Voida did. Then the rear door flew open, and Plakas fled into snow-covered woods. French v. State, 273 Ind. Roy tried to talk Plakas into surrendering. Then Plakas tried to break through the brush. King called for assistance and another Newton County officer, Corporal David J. Koby, and two paramedics, Glen Cain and Steven Whitt, responded. 1994), and Russo v. City of Cincinnati, 953 F.2d 1036 Cain told Corporal Koby to check Plakas for intoxication and he told Koby why. 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? Cain and some officers went to the house. 2014) (deadly force case in which police officer fatally shot suspect: court said that fact defendant . Twice the police called out, "Halt, police," but the plaintiff may not have heard. 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. 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. Subscribe to Justia's Free Newsletters featuring summaries of federal and state court opinions. Id. 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 agreed that Roy should talk to the police. at 1276, n.8. Joyce Ailes heard Dino banging against the house; she saw him and opened the door. 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. 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. 1994); Martinez v. County of Los Angeles, 47 Cal. She chased him and, when she caught him, he attacked her, banging her head into a concrete surface. At times Plakas moved the poker about; at times it rested against the ground. Drinski's retreat was involuntarily stopped, either by his backing into a tree or by a near stumble of some sort. Plakas told them that he had wrecked his car and that his head hurt. Having driven Koby and Cain from the house, Plakas walked out of the front door. 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." She chased him and, when she caught him, he attacked her, banging her head into a concrete surface. 5. In the case of Plakas v. Drinski, the Federal district court in Indiana decided the use of a less lethal alternative was not required when the use of deadly force by police was justified. Plakas accused Koby of hurting him, and yelled about the handcuffing behind his back and about his scar tissue. This guiding principle does not fit well here. 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. 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 plaintiff there was the administrator of the estate of In her response to Drinski's Motion for Summary Judgment, Plaintiff argues that the Indiana Dead Man's Statute, Ind. 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. Konstantino Plakas was shot once and killed by Jeffrey Drinski, a deputy sheriff. 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. 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. Roy stayed outside to direct other police to his house. Illinois v. Lafayette, 462 U.S. 640, 647, 77 L. Ed. In this record, there is expert opinion that Drinski might have been better trained to negotiate with Plakas and that he may have said one thing to Plakas that he ought not to have said, i.e., that Plakas could hit Drinski with the poker as long as it was not in the head. Sign up for our free summaries and get the latest delivered directly to you. The police could have tried to put barriers between themselves and Plakas and maintain distance from him. 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.". Find . 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). 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." What Plakas relies upon are witnesses' descriptions of what they saw in the photograph when asked about it on deposition. 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 1332. 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. 1992). 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). Plakas was turned on his back. 1988) (en banc) . 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. He stopped, then lunged again; she fired into his chest. 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. 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. He appeared to be blacking out. 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. 1993 . 1994). 1985) (en banc). Through an opening in the brush was a clearing. If the officer had decided to do nothing, then no force would have been used. We do not know whether there was any forensic investigation made at the scene. Cited 71 times, Perfetti v. First National Bank of Chicago, 950 F.2d 449 (1991) | 1988) (en banc), police officers shot and wounded a masked bank robber fleeing from the scene of his crime. 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. 1991); Tom v. Voida, 963 F.2d 952, 961 (7th Cir. Plakas turned and faced them. Perras took the poker. Nor does he show how such a rule of liability could be applied with reasonable limits. 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." 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). Abstract. Plakas opened his shirt to show the scars to Drinski. 1998); Plakas v. Drinski, supra, 19 F.3d at 1150 n. 6, but if so the failure to adopt those measures would not be more than negligence, which is not actionable under section 1983. . Tom v. Voida is a classic example of this analysis. Moreover, about ten minutes before the shooting, the services of a canine unit (from Lake County) were offered. We said, "The officers' split second decision to use their weapons, after twice warning the suspect, was objectively reasonable under the circumstances. Since Drinski did not violate Plakas's rights, there usually is no basis for holding his employer, Newton County, liable. Joyce saw no blood, but saw bumps on his head and bruises. Plakas was calm until he saw Cain and Koby. Circuit Rule 28(d); Branion v. Gramly, 855 F.2d 1256, 1260-61 (7th Cir. Tennessee v. Garner, 471 U.S. 1, 3, 105 S. Ct. 1694, 1697, 85 L. Ed. Then gripping it with both hands, he continued screaming, louder and louder at Cain and Koby. My life isn't worth anything." Again, he struck her. They could have used disabling chemical spray, or they could have used a dog to disarm Plakas. Plakas v. Drinski, 19 F.3d 1143 (7th Cir. Even if Koby did beat Plakas, Koby was not at the scene of Plakas's demise. 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. 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. Morton v. Kirkwood, 707 F.3d 1276, 1281 (11th Cir. Roy Ailes spoke to Plakas, smelled alcohol on his breath, and found him to be upset and insistent that he did nothing wrong. King, Koby, Cain and Trooper Lucien Mark Perras of the Indiana State Police responded, as did Deputy Sheriff Jeffrey Drinski. Perras would have shot Plakas if Drinski had not. They followed him out, now with guns drawn. He turned back to Drinski who was 12 to 15 feet away and, with the poker raised, charged at Drinski who backed away. When paramedic Whitt arrived at the clearing, he found Plakas laying about a foot from the brush at one corner of the clearing. et al Filing 89 MEMORANDUM Opinion Signed by the Honorable John F. Grady on 12/29/2011. 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. Also, in Carter v. Buscher, 973 F.2d 1328 (7th Cir. 2d 1 (1985). The alternatives here were three. 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. The only argument in this case is that Plakas did not charge at all. Graham, 490 U.S. at 396-97; see also Sherrod v. Berry, 856 F.2d 802, 806-07 (7th Cir. Before CUMMINGS and COFFEY, Circuit Judges, and ZAGEL, District Judge.*. For the next quarter-hour or half-hour, Drinski and Perras tried to talk Plakas into surrendering. Yet we rejected the proposition "that the Fourth Amendment prohibits creating unreasonably dangerous circumstances in which to effect a legal arrest of a suspect." 93-1431. 2d 1, 105 S. Ct. 1694 (1985). Subscribe Now Justia Legal Resources. In this sense, the police officer always causes the trouble. Cited 77 times, 980 F.2d 299 (1992) | 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." It became clear she could not physically subdue him. When paramedic Whitt arrived at the clearing, he found Plakas laying about a foot from the brush at one corner of the clearing. (Notes) Sherrod v. Finally, there is the argument most strongly urged by Plakas. This conclusion accords comfortably with the opinion of Judge Zagel in Plakas v. Drinski, 19 F.3d 1143, 1148-50 (7th Cir. 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